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A. REPLY 



TO THE 



mm of Judrie %koatt d*mw 



OF THE 



tl^oll, 



■ Proceedings, Findings and Sentence. 



OF THE 



GENERAL COURT MARTIAL 



IN THE CASE OF 




or General Fitz John Porter, 



And a Vindication of that Office 



R, 



By REVERDY JOHNSON. 















Baltimore: . . . Printed by John Murphy & Co. 

Publishers, Booksellers, Printers and Stationers 



182 Baltimore Street, 
18G3. 



75 



The preparation of this Reply was delayed until a printed copy 
of the Record in the case of Major General Fitz John Porteb 
was obtained, and since, by professional engagements, which the 
writer was not at liberty to set aside. It is now submitted in the 
confidence that the intelligent and impartial reader will coincide 
in opinion with the writer, that a greater injustice was never done 
through the forms of a judicial proceeding, than was done by the 
sentence of the Court Martial in the case of that gallant officer. 

Baltimore, July, 1863. 



Note.— The references to the evidence, &c, are to th< ' the trial, 

as published by order of the House of Representatives,— Ex. Doc. No. 71. 

Congress, 3d Session. 



REPLY. 



To vindicate a citizen unjustly assailed, is the duty of all men who pro- 
perly estimate the value of individual character and its influence o 
public good. The duty is the more imperative, if the servi 
citizen have contributed to the honor of his country, and have bei 
dered with great toil and solicitude, and amidst frequent and imi 
perils. To this general obligation in the instance which causes this 
paper, there is with the writer superinduced the special one growing 
the professional relation in which he has hereto d to the < 

whose case forms its subject. His first persona! acquaintance with 
Major General Fitz John Porter was, when he became one of his 1 1 
on his recent trial Before then, he knew him only, (and who did i 
know him who has followed the history of our sad civil war,) as a pa- 
triotic, skillful and gallant officer, giving his days and nights to dut; 
discharging it to its fullest measure, and on all occasions an 
highest expectations of his superior officers, his friends and country. In 
his hands the military service had not only suffered no dishonor, but had, 
attained even higher distinction. He had achieved for himself a na 
which the nation was justly proud, and a reputation amongst all tho 
his brothers in arms, who, being themselves worthy of their noble p 
sion, saw, without envy, eveVy manifestation of his skill ami gallantr 
rejoiced at it as enhancing the reputation of the service, and giving the 
assurance that a patriotic soldiery led, as Porter led his men, could i 
to extinguish the rebellion, restore the people to their former happini 
prosperity, reinstate the Government in its rightful authority, and give ii a 
name with the nations of the world, even brighter and more commanding 
than it had ever possessed. The high esteem in which, in common with 
all, the writer held Porter, was, if possible, increased after he b ame his 
counsel. And to that esteem was then scon added the i 
stronger, ties of personal friendship. For we ing him almosl 

constantly, not only in the Court by whom his 
private consultation, he had every opportunity of becoming acqu 
with the man, and as far as he is capable of judging, with the officer. 
He witnessed in the former thai l from vainly, that mil 

of disposition, with that firmness of purpose which are often united, 
and a strong sense of honor that won for him his high 
in the latter a devotion to his profession, a perfec 
all the conflicts in which he had ! 



6 

honor where honor was due, a mildness of scnsure where he 

thoughl errors had been committed, an ardent love of country, and a 

innocence of the charges which he was to answer, 

which, independenl of all other evidence, satisfied him that such charges 

in everj particular wholly unfounded. 
When tip.' evidence was all given, he regrets to be compelled to say, 
thai he was farther satisfied that they were as malicious as unfounded. 
But. though then, and still so convinced, he would never have deemed it 

; ry to bring his case again before the public in the form of a vindica- 
tion, notwithstanding the sentence of the Court affirming their truth, Imt 
for the reasons he is aboul to give. A defence was made before the sen- 

was pronounced, and by all who heard it, or who have since read it, 
a defence considered as triumphant and unanswerable. So universal was 

•inion, that when the evidence and the defence had been seen, an 
acquittal was anticipated with undoubting confidence. So great and 
genera] was thai confidence, that never in the history of jurisprudence, civil, 
criminal or military, was a judgment announced that so shocked and 
startled the sense of public justice. In speaking of the ability of the de- 
ft nee, the undersigned but pays a just tribute to his associate counsel, 
Mr. Charles Eames, by whom it was, in everything deserving praise, ex- 
clusively prepared. Hut what occurred without the knowledge of General 
Porter, or his counsel, whilst the case was progressing, and in the Court, 
whilst the evidence was being given, and at the close of the reading of 
the defence, and what has since occurred has rendered it proper in the 
opinion of the writer, that the public judgment should be again invoked. 
Upon various grounds, it is not less due to Porter, and to truth — than to 
the good of the military service, and to the confidence so material to that 
good which is to be placed in future military judgments, that the atten- 
tion of the public mind should be once more invited. The grounds re- 
ferred to, are these : 

I. — Pending the trial, the evidence of three of the leading witnesses of 
the prosecution, Major General Pope, Brigadier General Roberts, and 
Lieut. Colonel Thomas C. H. Smith, was secretly and annonymously 
published in Washington, in pamphlet form, with a title page which, as 
evidently intended, would had the reader to suppose that it contained 
eithi r all the evidence in the case, or that the evidence that it did con- 
tain, was in no particular rebutted by other proof. Porter has since 
discovered that the cost of this publication was paid by Smith, and that 
Roberts transmitted copies to persons in several of the Northern States, 
and as believed, to many members of the Senate of the United States, a 
fact disclosed in part in a short debate in that body at its recent session. 
On a motion calling for the Record for the purpose of publication— Mr. 
inden objected, because, as he stated, the Record had already been 



printed, a copy of it having been sent to him (by whom sent he di 
say, because he did not know,) hut doubtless by Roberts, or by hie • 
tion. Even by so discerning a gentleman and accomplished a law; 
Fessenden, the fraud of the publication was nol red. 

II. — The rulings of the Court, (which for obvions r mid no1 be 

commented upon in the defence,) on questions of the admissibility of evid- 
ence in some instances, and as the undersigned in all, \\ 
palpably erroneous, and so injurious to Porter, that they foreshadowed 
in colors too striking to be mistaken, the resull to which a majority of 
the Court would arrive. These errors were so apparent as to excite the 
surprise, and incur the censure, as the writer knew at the time of distin- 
guished Judges, and member of the bar without an exception, unless the 
Judge Advocate was one. It is not meant to say that he was, 
as on more than one occasion, he himself intimated the error and induced 
the Court to correct it. 

III. — When the evidence was all introduced, the counsel of 1' 
requested to have until the following Monday to prepare the defenc 
the Court suggested, because of other pressing engagements of bo 
the members, the following Saturday. This suggestion was agreed to by 
the counsel with the understanding, sanctioned by the Court, that if the 
Judge Advocate replied, the counsel should have the right to rejoin. 
Whether rte would reply or not, that officer declined to say. The I 
was then cleaved, no one remaining with them but the Judge Advocate. 
The evidence was, it is said, read over, doubtless commented opon I 
and from the clerity with which the sentence followed the reading of the 
defence, even charity cannot but believe, thai it was determined opi 
fore a word of the defence was heard. Thedefence was read on Saturday, 
the 10th of January, 1863, and the moment it was concluded, which was 
about 2± o'clock, P. M., the Judge Advocate said, orally, that he did not 
propose to answer it, but that he submitted the case on the pari of the 
government without remark. The Court was then cleared, the • 
Advocate again remaining with them, and before 6 o'clock, P. v ' 
sentence pronounced that the accused "be cashiered," and "bel 
disqualified from holding any office under the Government of theTJnited 
States." The character of the evidence as published, from day to day. in 
the Journals of the country, had so satisfied the public of Porter's inno- 
cence, and that conviction become the more fixed and absolute vi 
was seen that the Judge Advocate declined to answer the defence, i ! 
seemingly submitting to a judgment by default, and that the Court de- 
cided so immediately after the defence was closed, that all saw it was im- 
possible even that the evidence could have been read, much I 
sidered as is due to proper judgment, or the defence either r< 



with the evidence, a measure called for by judicial propriety and 
id enlightened conclusion. In this state of the public 
opinion, as manifested by the concurrent voice of the entire press, that 
at all, th I was pi i ■•[ in the hands of the President. Un- 

less he had before been unofficially advised of it, he must, when he read 
ntence, have been struck with the same surprise, with which its after 
announcement struck the public ear. Of all the men iu the country, he 
have experienced not only astonishment, but concern. In May, 
1861, he had commissioned Porter a Colonel in the regular army, in 
Augus year, a Brigadier General of Volunteers, and in July, 

id for distinguished services in the Peninsular Campaign, a Brevet 
ral in the regular army, and a Major General of Yolun- 
Honors due to him, in the view of the President, for amongst 
others, the to his country in the battle of Malvern, a 

battle which, in the words of his Chief, McClellan, in a letter to the 
lent written just afterwards, and near the battle ground, and speak- 
ing, as he said, "not from hearsay, but from personal observation," that 
1, "in its result any other engagement in the campaign," and 
•o much credit could not " be given to General Porter, for his skill 
and gallantry on the occasion."' 

President, then, could not but have paused before approving such 
a sentence, and asked himself how it was possible that Porter, the idol 
of his men, the boast of the army, the pride of his chief, and the recipient 
of honors which, from a sense of public justice and gratitude, he had con- 
ferred upon him for distinguished and valuable services' rendered his 
country in a most perilous crisis, should all at once have been so recreant 
to his past patriotism, so forgetful of his then well-earned and universally 
vledged fame, as to have committed acts almost before the ink was 
dry upon the parchments containing his commissions, and whilst the public 

ids of skill and daring, as to demand, in 
the judgm Court composed of brother officers, that he "be 

' and "fon [ualified from holding any office of trust or 

under the Government of the United Stal 

of great volume. As published by Congress, inclu- 

closely printed octavo pages. The 

■nt should have taken time, before approving of such a sentence, 

the writer respectfully submit.-,, to have examined it to find what it could 

' i to justify such a judgment. The mere itself gave him 

i. It was, as is usual, but a mere naked judgment, 

: "" 1 must, theref left his mind in the condition of amazem 

which it conld not but ha id him. Nor could he discover why, if 

bed Judge Advocate should have sanctioned such a 

The Record contained no of that officer, summary or in 

It did contain the defence of the accused, and if he had read 



that, his amazement could but have been increased, as h 
that it was, what all but the Court, ... 

lieve.) more accurately, a hare majority, tho 

vindication. The Pi- time, however, was perh 

by matters which he supposed to be of i . national] ■ 

(as if any tMng was more important than jus 

within the period, the 12th of J., ,)„,, the 

placed in his hands, and his approval of 

21st of that month, that he could have read it tl 

all, or examined the testimony, or tested the . 

defence, by an accurate or critical review of the 

now appears, did he undertake what, in 

have been an impracticable task. F 

Judge Advocate, which it is the main purpose of the writer ; 

the 13th day of January, 1863, the day after the Record wa 

to him, the President written instructions" to that 

ise the proceedings of the Court Martial in th< era] 

Fitz John Porter, and to report fully upon any legal q i 
may have arisen in them, and upon the bearing of the 
ence to the charges and specifications exhibil and 

upon which he was tried.'" These instructions produced a:, i 
paper, dated the 19th of the same month. The Record 
day and the date of the instructions, and the prior loth, must bi 
continuously in the exclusive possession of the Judge 
probable that the Record, with the review, was not returned to the 
President before the 20th, but, however thai it could n 

been returned at the earliest, sooner than the day ol tl. the 

review, the 19th, and on the 21- 

therefore, the more obvious than it would othi that in I 

period of two days, proper examination and comparis 
and the bringing to their test Porter' and subje 

test the Judge Advocate's review, (each vital to a proper co 
and just conclusion,) could not have been made by th< 
inference, therefore, is irresistible, that in this ins 
motives which his established character previ nts our 
much we may lament its weakness and iis injustice,) he hi 

judgment, though severely calculated to dish >r a well tri 

vant whom he had but recently before, over ami over i 
acts of distinguished official favor upon the i 
VOCate alone, without collating it even with the p 
quoted by tl .. much less with all the evidem 

understand properly and justly the portions quoted or 
discovi :• what is thought to be quite apparent, the 
which that officer entertained towards the accused. B 



10 

confidence in the Judge Advocate, he has, yielding to the pressure of 
other engagements, submitted his own judgment to the keeping of that 
officer. And he did this so entirely, that it does not seem to have oc- 
curred to him, that it was in any respect due to Porter that he should 
have an opportunity, through his counsel, of replying to the argument of 
that officer. What occurred in the Court on that point could not, there- 
fore, have been made known to him. He could not have been told, that 
in the view of the Court, if a reply was made to the defence, it was due 
to the accused, and his privilege, that he should have the right to rejoin. 
But it is most singular, and not to be accounted for, except that his other 
harassing and important engagements deadened his sense of justice, that 
a right so justly due to Porter, and so necessary to truth, had not sug- 
gested itself to his honest mind, and more especially, as his long expe- 
rience as a lawyer must have taught him its importance. 

But so it was. The accused then, as far as the President's action is 
concerned, has had his case decided on the argument of the Judge Advo- 
cate's review, not only without having had accorded to him the privilege 
of reply, but without the President's having taken time to read all the 
evidence, if he read any part of it, or to read the defence, or to test that 
or the review by comparing either with the whole evidence or with any 
part of it. The rule of military law as laid down by Sir Charles J. 
Napier, is now well settled, that no matter how many addresses are made 
by either party, "the Prisoner has the right to speak last." Bennet, 
pp. 123, 124. In this instance, the rule was grossly violated. The last 
speech was made by the Judge Advocate. Porter was not only not per- 
mitted to reply, but the existence even of the review was apparently con- 
cealed from him, certainly was not known by him until in common with all, 
after the sentence was announced approved, and was circulated by the War 
Department. To any mind accustomed to the investigation of truth and 
the ascertainment of facts through human testimony, such means are 
known not only to be important, but essential. No conclusion arrived at 
in any other way, can be relied upon. No judgment, otherwise formed, 
is entitled to the least respect. In any instance it is as likely to be wrong 
as right, and more likely to be wrong, in a case where it affects injuriously 
the character of a citizen whose antecedents had challenged not only the 
good opinion of those who knew him, but their admiration, and whose 
claim to public esteem rests on admitted valuable and perilous public 
service. In such a case, mental imbecility or prejudice, so deep and dark 
as wholly to cloud reason, must be supposed to be the foundation of the error. 
And with an evident consciousness that the observing and correct mind 
of the country would be astounded at the result, with a zeal and industry 
worthy of a better cause, the same resort, which so evidently misled the 
President, has been adopted to quiet the certainly anticipated public con- 
demnation. Whilst the Senate refused to call for the Record in order to 



11 

its publication, (because of their having been deceived through the degra- 
ding artifice of Roberts and Smith, into the belief that it had all been 
published,) that the people might see the whole case, the review of the 
Judge Advocate was at once published at the expense of the War De- 
partment, and scattered broad-cast over the laud. Other things, too, 
have happened, suggestive of most unpleasant reflections, reflections cast- 
ing more than a doubt on the mere abstract correctness of the Court's sen- 
tence. Almost simultaneously with its publication, three of the members 
of the Court were made Major Generals, all certainly most estimable gen- 
tlemen, and possibly competent soldiers, but with no claims to such pro- 
motion, (one of them, Major General Prentiss, the only one of the three, 
who it is confidently believed, did not concur in the sentence, has recently 
proved himself worthy of his rank, by his skillful defence of Helena, Ar- 
kansas.) But the public in vain, at the time, endeavored to recollect any 
fact as to either calling for such an honor, and have not been more suc- 
cessful since, except and very recently as to Prentiss. And they have 
asked, and still ask, if their distinguished services and the good of the 
couutry required their elevation to such high rank, why was it not con- 
ferred before? and why, why, above all, was it the immediate sequence 
of the sentence against Porter ? Who can answer satisfactorily either 
question ? None certainly has as yet come from any quarter. The Pre- 
sident of the Court, Major General Hunter, was also immediately re- 
turned to a command from which he had been shortly before removed for 
acts of alleged mistaken policy, or excess of authority, and from which it 
has been found necessary to remove him a second time. 

Of the three witnesses, Major General Pope was continued in an im- 
portant command, notwithstanding his sad failure in his Virginia cam- 
paign. Brigadier General Roberts was assigned to a more important 
one than he had ever held before, or to which any competent officer who 
had known him believed him equal — nor in his career since has he done 
anything to attract attention, except in the way in which his former chief 
signalized the commencement of his Virginia career, the issuing of pro- 
clamations as uncalled for as they were ridiculous and futile. It has also 
been found necessary in his case, to take it from him, and he is now once 
more on Pope's staff. 

What disposition has been made of Lieutenant Colonel Smith, is not 
known, and probably no one cares. He perhaps continues to be one of 
the military family of Pope, ready whenever his exigencies maj require 
it, to display for his benefit, the extraordinary faculty which he claims to 
possess — the reading of souls at first sight. The faculty of receiving, to 
use his own words, an "impression," although unable to analyze it from a 
few moment's intercourse with another — the [tower to obtain "one of those 
convictions that a man lias a few times, perhaps, in his life, (he is modest 
enough not to claim to have it always at his command,) as to the character 



12 

and purposes of a person who he sees for the first time," and although 
"no man can express altogether how such an impression is gained from 
looks and manner, but it is clear.'' 

Under all these circumstances, with every ingenuous mind, a sentence 
announced as this was, would he without the slightest authority, and no 
reason could exist for subjecting it to serious examination. The fact, 
however, that the present one, is maintained and justified by Mr. Judge 
Advocate General Holt, makes it in a measure advisable. The well 
established reputation of that officer, his perfect loyalty, his eminent abil- 
ity, and I vhat plausible character of the review, considered by 

' ; seems to require that that review be answered. For, however, as 

the writer lias good reasons for believing, this is thought to be unnecessary 

]r, those who have made themselves acquainted with all the evidence, 

e must be a numerous class of citizens, who not having done so, may 

have been led estray by it. 

The ingenuity of the Judge Advocate and his deservedly high reputa- 
tion it an authority to which, it will be seen it is not entitled, when 
it comes to be examined. A reader uninformed as to the evidence, will 
be unable to detect his sophistry or discover his prejudice, a prejudice 
doubtless unknown to himself, but not the less strong, and perhaps stronger 
on that account. Under this impression, it is the purpose of the writer 
to subject the review to the ordeal of reason and of truth. This he feels 
to be not less due to Major General Porter, than to the good of the ser- 
vice, and the benefit of the country. An officer, whose deeds on so many 
battle fields in the present war have so enhanced the nation's fame, filling 
with gratitude the very "pulse and veins of the people,' 1 whose patriotism 
from the first, was not only never before called into doubt, but admitted, 
ally honored and rewarded, should not be permitted to suffer in 
fation of one honest citizen from a paper whatever of high char- 
acter may belong to its author. 

There are further considerations which in the judgment of the writer 
call for an answer. Before the sentence was made public and since, Por- 
ter has been assailed, with a bitterness implying malignity as well as 
ig D td by a few persons filling high official places, and whose 

claim to i1 and confidence, (however ridiculous these are to those 

who know them,) may have misled a part of the public. Amongst those 
are some who pretend to be Military Critics. Possibly themselves led 
estray by their own turgid conceit, they may believe that they possess this 
highest of intellectual powers. And where they are not self-deluded, 
there blatant patriotism, (ever the art of the demagogue,) may possibly 
mislead the unsuspecting. Tie ire slow to believe that such pre- 

tenders to knowledge and virtue can design to delude. Their assumed 
wisdom for a time is taken at its nominal, not its real worth — their judg- 
-, valued at their author's estimate, and not at their actual value. 



13 

And for a period, miraculous even as it may appear, they are supposed 
to be infallible judges of military subjects, to be men whom nature has 
made chosen objects of her favor, imparting to them the faculty of masl sr- 
ing military science without either study or practice, alt hough in all other 
respects they are seen to be placed low in the scale of human capacity. 
It is consequently possible that to some extent these pretenders may have 
given to the sentence of the Court some little sanction. This furnishes 
a further reason for the vindication of Porter, and to these several reasons, 
perhaps, is to be added yet another. It is not to be disguised that in the 
conduct of this sad war different views of policy have been entertained in 
the army as well as in Congress. The resolution adopted in 1861, 
so much unanimity by that body, declaring what the object of the Govern- 
ment in the war was, was approved with almost the same unanimity by 
the army, men as well as officers, and by the people. That policy, then 
so generally approved, has been since departed from, whether wisely or 
not it is not the writer's present design to enquire. The chief authors of 
the change have from the first charged almost every military disaster and 
the failure of a complete triumph over the rebellion to the want of con- 
currence in the wisdom and propriety of the change in a portion of our 
military leaders, and have literally clamored for their removal. To this 
class Porter was supposed to belong. Whether he did or not the writer 
has no certain knowledge, though he thinks it probable, as by nature 
and intelligent patriotism he is conservative aud national. But to 
suspect him of not changing his individual opinion as Congress changed 
its own, in the estimate of the men alluded to, was fault enough. In their 
view every officer whose opinions were supposed to be the same on cer- 
tain subjects as those of McClellau and Porter, and who has failed to 
abandon them at party bidding, has been continuously assailed with the 
same bitterness. Even the present Commander-in-Chief is constantly 
subjected to its fury. Assaults are made upon him from day to day, 
and witii ever increasing violence. His removal is demanded under the 
pretext of the public good, but really to gratify party purposes. His 
capacity is denied — his patriotism questioned, and the Presidential ear 
literally dinned with the ignorant and false clamor. Thus far, however, it 
has been without avail. His having abandoned his distant home on the 
Pacific, where every comfort surrounded him, aud no peril threatened or 
could come, purely from a sense of patriotic duty to serve the country in 
the present crisis, and his having subsequently on the field and in the closet 
giving his days and nights to her assistance, all avail nothing. These 
voracious hawkers after objects of party sacrifice seem literally to gloat, 
and with no concealed delight, over any officer, (the higher he stanu 
the public esteem the greater the pleasure,) who they think they can make 
a victim to their thirst for victims to promote party succe 



14 

Porter, too, was known to be a personal friend and admirer of Mc- 
Clellan. lie had every means of judging of McClellan's capacity, of 
witnessing his love of country — bis constant efforts to serve her, and his 
military skill and genius, and the result was that he highly appreciated 
him as a citizen and an officer. And this, in the view of the men referred 
to, seemed to be almost if not fully as great an offence as treason. He 
became therefore at once an object of vituperation, and no efforts were 
spared to shake the confidence that the President had so conspicuously 
placed in him. When Pope's disgraceful failure was evidently stirring 
the public mind to the folly and injustice of taking from McClellan 
the command of the army of the Potomac, and arresting his plan of further 
campaign, it became apparently vital to party success that some safety 
valve should be found for the harmless escape of the impending in- 
dignation. And it was thought that it would be found by ascribing 
that failure to treasonable conduct on the part of Porter, and this 
was done. A willing instrument for the purpose, Pope was supposed 
to be, (it is but justice to that officer to say, that when he discovered 
it, he declined the degrading task.) The charges at first were said to 
be his, — he promptly disavowed them. That occurring, an informer 
was found in Roberts. The result is the dismissal of Porter from 
the service, whose fame he had so signally enhanced, and its being 
hailed with delight by the class referred to. Had Porter pursued a 
different course; had he, with the readiness of a mere party politi- 
cian, regardless of his former opinions, adopted with instant and 
proclaimed zeal, those which Congress, forgetting their former opinions, 
afterwards adopted; and especially, had he, oblivious of the teach- 
ings of his life, of his good name and honor, and of the opinion of 
the enlightened and patriotic, proved himself an inordinate braggart, 
boasted of his own merits, detracted from McClellan's, and stated that 
he, commanding the army, Richmond would long since have been ours — 
he, too, would doubtless now not only be in the service, but be the favorite 
and boast of the very men who have denounced him, and probably have 
been placed at its head. The rank ignorance of such men, their lofty 
pretensions, and supercilious arrogance, from its very extravagance, is in 
a measure captivating. Sublimity is at times found in the excess of 
the ridiculous. "An avenue of colossal toads might become sublime." 

With these remarks, pertinent as the writer thinks to his purpose, he 
proceeds to answer the Judge Advocate, and with all the brevity consistent 
with necessary fullness and perspicuity. 

Evidently sensible of the insufficiency of the evidence considered by 
itself, and perhaps more sensible, that the President would so view it, to 
effect the accused in the matters charged against him, the Judge Advocate 
devotes four pages of the thirty of his review to discover what had been 
the animus of the accused. To quote his language, "as the animus of 



15 

the accused towards his Commanding General in pursuing the line of con- 
duct alleged against him, must largely affect the question of his criminality, 
and may furnish a safe and valuable light for your guidance, (he is ad- 
dressing the President, not the Court,) "in determining points, olheriuise 
left doubtful by the evidence, it is proper that it should be ascertained 
before entering at large upon the review of the case, which you have in- 
structed me to make," 

What an exordium to a paper designed to induce a sanction of a judg- 
ment, dishonoring an officer whose life had been passed in faithfully 
discharging his duty to his country — whose loyalty and efficiency after 
the rebellion broke out, had been manifested in part under the orders of 
the reviewer himself, wheu he was at the head of the War Department, and 
to his entire satisfaction, and conspicuously displayed in the midst of 
great difficulties and peril, and whose conduct in the many battles in which 
he had been engaged, had excited the public admiration, and received 
the signal approval of the President. 

The evidence alone, says the reviewer, is not sufficient to convict the 
accused, or to use his own words, his guilt is " left doubtful by the evi- 
dence." 

His animus however, " may furnish a safe and reliable light," by which 
to discover his guilt. It may enable the President to determine what is 
otherwise doubtful. You must in this way supply, he tells the President, 
the defficiency in the proof. You must probe the mind of the accused. 
That may remove the darkness — furnish the light — explain the doubt. 
And to this, and with an earnestness that evinces a burning desire of suc- 
cess, he addresses himself with poetic license — with a beautiful, though 
somewhat extravagant fancy, which however it may please the ear, in the 
judgment of the wise, is a very unsafe guide to truth. 

Not content with the asserted tendency of the telegrams, which he had 
offered in evidence to establish the somuch wished for animus, " Lieut. 
Colonel Thomas C. H. Smith, an Aid-de-Camp in the staff of General 
Pope," is resorted to for the charitable purpose. 

His power to see into the very hearts of men at a single and first inter- 
view of a few minutes duration only, preceded by no prior acquaintance 
whatever, is, and with a confidence which under other circumstances, 
would by a plain judgment be considered simply ridiculous, seriously 
relied upon. The defence had characterized what this witness had said 
in regard to it, (and as the impartial and intelligent reader will think 
justly,) as "ravings, wild fantacies, rubbish, which should not have been 
suffered to encumber the Record." 

How unjust this is, says the Judge Advocate. "The witness, (he says) 
endeavored to lay bare the foundations on which his belief of the accused's 
meditated treachery rested." He said that the manner of the accused, 
" was sneering throughout, whenever allusion was made to matters con- 



16 

nected with General Pope, and quoting Ins words, "his look was that of 

a man having a crime on his mind.-' But the Judge Advocate admits, 

that the task, (discovering with the only opportunity which he had, the 

e of Porter's mind,) "was a difficult one, and may not have been en- 

fuL n 

In other words, he admits, that in this, Smith may have failed, and 
done the accused injustice. He adds that "it was physically impossible 
for the witness to reproduce the manner, the tone of voice, and the ex- 
pression of the eye, and the play of the features, which may have so 
much influenced his judgment. Yet these often afford a language more 
to be relied on than that of the lips. He could not hold up before the 
Court, for its inspection and appreciation, the sneer of which he spoke. 
And yet we know that a sneer is as palpable to the mental, as a smile is 
to the natural vision. It is a life-long experience that souls read each 
other, and that there are inter-communings of spirits through instrumen- 
talities which, while defying all human analysis, nevertheless completely 
command the homage of human faith. Great crimes, too, like great 
virtues, often reveal themselves to a close observer of character and con- 
duct, as unmistakably as a flower garden announces its presence by the 
odors it Iireat lies upon the air." From these quotations, the reader will 
see how vital, in the judgment of the Judge Advocate, to the success of 
his palpable purpose to have the sentence approved, it was that the 
alleged criminal animus of Porter should be made out. Nor can he 
also fail to discover that, even with the reviewer's evident desire to dis- 
cover it — his belief in spiritual "inter-communings" — his tendency to be 
led into error by his own imagination — his doctrine that the face often 
speaks the mind as unmistakably as the presence of a flower garden is 
announced " by the odors it breathes upon the air" — he admits that in 
this instance the professor of the art, his lauded Lieutenant Colonel, 
"may not have been entirely successful." 

He concedes that he may have misconceived "the look;" although, if 
the treachery " was then contemplated, it must lie admitted as altogether 
probable, that the shadow of such a crime struggling into being, would 
have made itself manifest." 

It is evident that the Judge Advocate is not satisfied with the result of 
his search, so far, for the much wished criminal animus of the accused. 
A philosophic poet has said that there are occasions when, — 

"Thought meets thought ere from "the lips it part, 
And each warm wish springs mutual from the heart." 

But to this, common feelings and a reciprocal nature are necessary. 

Who that knows Porter, and has seen Lieut. Colonel Smith, could 
for a moment believe that such was their relative condition. Well 
might the reviewer then fear that his effort to establish, by such proof, 



17 

the intended treachery of the accused, had failed. Well might he be 
sensible that such a task was even beyond his great powers, displayed 
either in imagination, spiritualism or argument. All exerted together 
for such an end, could not lift folly to respectability — make absurdity 
reason — a ridiculous pretence, plausible, or for a moment with a con- 
siderate, honest and unprejudiced judgment, injuriously affect a soldier, 
who, with fearless intrepidity and consummate and applauded skill, had 
so faithfully served his country, at a period when so many had proved 
faithless. In addition to the strong impediment which was thus inter- 
posed to the success of the Judge Advocate's purpose, there was an- 
other. The witness himself, in addition to the nonsense already referred 
to, proved that he was not in this particular, at least, to be relied upon. 
He was so bewildered with his own conceited flummery, that if he is to 
be believed, it was near making him the greatest of criminals. He told 
the Court what the Judge Advocate omits to iuform the President, that 
on his return to his chief, after his ten minutes interview with Porter, he 
stated to the former, "I was so certain that Fitz John Porter was a 
traitor, that I would shoot him that night, so far as any crime before God 
was concerned, if the law would allow me to do it." What an avowal, 
almost a boast. That the laws of man alone restrained him, not the laws 
of God from committing murder. And yet, this witness with this horrible 
avowal fresh in his mind, the Judge Advocate tells the President is, 
" a man of fine intelligence," "that his conscientiousness rendered him 
careful, and guarded in his statements, and that he evinced a depth and 
solemnity of conviction, rarely paralleled in judicial proceedings." 

What mind, but one so blinded by prejudice, that its light was for a 
time extinguished, would not, on the contrary, at once and with indigna- 
tion, have rejected the testimony of such a witness, even if its transparent 
doltishness was less conspicuous. But prejudice, jaundices the finest as 
well as the weakest intellect, and makes everything appear of its own 
color. To immaterial facts and idle fancies, it attaches, substance and 
reality. It affects the very warp and woof of the mind, engenders sus- 
picion, and gives to idle and trivial circumstances, the weight of un- 
answerable proofs. He who read through all hearts, and knew and dis- 
cribed man in his loftiest exhibition of virtue — his grandest of crime, and 
his lowest of weaknesses, says jealousy, (and in this it resembles prejudice,) 
is one of his frailties. "Trifles light as air, are to the jealous, confirma- 
tion strong as proofs of holy writ,*' and "shapes faults that are not." 

These observations are not made in any unkind spirit towards the Judge 
Advocate. His talents are admired, and his public services and patriotic 
virtue in this epoch of our history, have given him an honored place in 
the grateful heart of the nation. But this renders it the more important, 
when his great authority is used to justify the sentence against Porter, a 
soldier to whom the country is yet more indebted, that that authority 
2 



i 

s 

S • - s - 

- .. - - 

- • 
S - 

s - 

- 

He 

- - 

dor 

se 

_ sending of 

ano- 
s 

I feelings 

and - and confi .eial 

- ns the J - ss which of 

form the . - -ore 

under orders >Ted by and others, 

bo enable the President 
understanding!? upon the - , : 

sked by to From what 

yon know now. have you any reason to believe that the .von 

by General Porter in those > ere son! to him.) 

s i the actual state of the army under Gene 
: be answered ; '* 1 - • 

"But that opinion is merely one based upon the information I then re- 
red, and what I have since hoard." (P LSI And the Government 



19 

offered no evidence to prove that they were not correct to the 
Nor does the Judge A te give the »r allude to it in any 

part of his review, the benefit of Genera] Burnsi ioion, formed on 

despatches, as well as on bis whole into frith and 

of Porter, that from the first, and to the period when d, he, 

Bnrnside, ■ Bed that he would 

his du.% to Pope and (he country. This is, too. th< 

his very fir i to Bnrnside discovers that he consid a 

important. Could he have obtained the one !. 

have used it, and even with more confidence than be ! 

"inter-communings of spirits," to show that Porter medil :hery ? 

His qnestion was : Will yon state whether at the time tl 
were received from General Porter, (say between 26th and 2!>;li of A 
inclusive,) any of them excited in your mind the apprehension that 
General Porter micrht not be inclined to do his whole dnl '.ordi- 

nate nnder General Pope?" The an- I biyed \ 

I.MPRFSSI<>.\ AS THAT FROM THE DESPATCHES. / WW in Genera 

ter's despatches exactly what T heard expressed by a la on of 

'■■ whom I ha\ ■ time, 

y great lack of confidence in the ma • the campaign. 

If was not confined to 6 

told General Porter himself so, what may have been i 

BUT NOTHING THAT LED ME, FOR ONE MOMENT, TO FEEL THAT HE 
NOT D!i HIS WHOLE DUTY." (P. 181.) 

This evidence (could it have been by design?) was 
to the President, but its existence was not even intimated, although the 
Jndge Advocate was instructed by the President "to report fully upon 
the bearing of the testimony (the whole, of nee to the 

charge- and specifications " upon which Porter was tried. Neither was 
the President informed thai, in answering the qu< stion bj the Court, (the 
one already quoted,) which was intended, if possible, to find on' whether 
Porter went under the command of General Pope with unfavorable im- 
pressions towards that officer, or whether such "impressions were gained 
after he was on the ground," the same witness testified: "He 
his troops off rapidly, and marched them at night, ami everything 
within my limit., appeared to me to indicate that he was determined 

TO GET HIS TROOPS T.'I* THERE A.- RAPIDLY AS POSSIBLE. 1 -A\V Norn 

ing to indicate the REVERSE." (P. 182. ) Nor wot ihe President 
advised that Bnrnside had testified, that in departing from an ordei 
of General McClellan as to the movement of his command from the Penin 
sular, and when it was known that they were to go to the aid of Pope, 
Porter was enabled to accelerate the movement — in the word- of the wit 

to embark that much sooner and send the transport 
others," (184.) Nor, finally, was the President informed that, in a:. 



20 

ing a question of the accused, the same witness had said : " I have never 
seen anything to lead me to think that he (the accused) was anything 
but a faithful and loyal officer;" nor that, in this opinion, every 
officer who knew him, and had witnessed his conduct throughout the war, 
as well as when he was under Pope's command, expressed, and in the 
strongest terms, perfect concurrence in this opinion. 

General McClellan, under whose special eye he had served in council 
and on the field, so spoke of him. He said that from the time Porter 
" knew he was to go to the assistance of General Pope," he did, in his 
opinion, do "all that an energetic, and zealous, and patriotic officer could 
have done." (Page 19G.) 

But the opinions of sensible men — men of well known character, 
intelligence, and patriotism — seem to have been considered by the 
Judge Advocate light as air, when contrasted with those of Smith and 
Roberts. The former, he appears to have thought, possessed but the 
ordinary means nature furnishes ordinary men to form opinions, whilst to 
one, of the latter, at least, Smith, she had supplied " instrumentalities 
which, while defying all human anabysis, nevertheless completely command 
the homage of human faith," and as to Roberts, his well known and uni- 
versally acknowledged character for perfect veracity, almost chronic love 
of truth and spotless reputation with his brother officers, placed his evi- 
dence and the sincerity of his opinions beyond all possible suspicion. 

That a chivalrous officer, whose life had been given to his country, and 
who but recently had so added to the reputation of its flag, should be 
sacrificed to reasoning so repugnant to common sense that the unpreju- 
diced mind rejects it at once as an insult to its intelligence, is one of the 
many extraordinary occurrences which, during the present rebellion, has 
so astounded the public. What but intellect perverted, could claim, as 
is done, for treason, the nobleness of patriotism, — for oaths violated, the 
character of virtue, — for rebellion, the justification of an absurd theory, 
or of an oppression that existed nowhere but in a diseased fancy ? And 
what adds, if that be possible, to the injustice of the use attempted to be 
made of these despatches, and so strongly indicates a predetermined con- 
clusion against Porter, is the fact that, although stated to be offered to 
establish his alleged contemplated treachery, the Judge Advocate objected 
to Porter's giving in evidence other despatches to General Bnrnside a 
few days before and after the 26th and 29th of August, (the dates of 
those offered by the Government,) that is, from the 22d of August to the 
1st of September, to disprove the alleged purpose, the animus. Strange 
as it may seem, the objection was sustained by the Court, and the proof 
rejected. A protest was entered, — (see Appendix 1.) That protest was 
published in the papers of the day, and in a short period the Court and 
the Judge Advocate saw that the ruling of the Court was received with 
astonishment and disapprobation by the intelligent press of the country. 
Clearly illegal as the decision was, and strange as it is that it did not so 



21 

appear to the Judge Advocate and the Court at the first, they adhered to 
it until the manifestation of public opinion on the subject caused him to 
suggest the waiving of his objection, and the Court to admit the evidence. 
The despatches were then received, but no one, aware of the circumstances 
under which they were received, believed that, however conclusive they 
were in disproving the alleged criminal intent or animus, they would have 
the slightest effect with the Court or the Judge Advocate. The result 
proved that in this opinion there was no error. Nor does the Judge 
Advocate, in his review, even notice them. The only reference he makes 
to them is to a single one of these despatches which Porter desired to 
send, and was not permitted to send, to Major General McClellan, dated 
2d of September, 1862, and that one is not given at length ; and, 
although admitted to be "full of fervent patriotism and professions of 
devotion to his duty in connection with the Army of Virginia and its 
commander," the Judge Advocate adds that, " unhappily it came too 
late." The merest trifle, which a fair mind would exclude as evidence of 
charges of dishonor and treachery against any one, much less a soldier, 
ever before esteemed, is seized upon with avidity and tortured, or sought 
to be tortured, inconsistent as the effort is with common sense, into proof 
of guilt, whilst the weightiest facts, those which, with such a mind, would 
be conclusive of innocence, for the most part are not mentioned at all, 
or when in part referred to, are rejected as unimportant, or as coming 
"too late." The President, however, should have been told of them, 
and the public should see the nature of the facts so discarded as not 
proving, or hardly as tending to prove, Porter's innocence of purpose. 
The Judge Advocate, even in regard to the despatches which he uses as 
establishing, in his view, the guilty purpose, omits to give the whole of any 
one of them. He extracts a few expressions from each, without alluding 
to its context, a practice ever unfair and unreliable. Had even the whole of 
these despatches been disclosed the President would have seen, and the pub- 
lic, for whom the review of the Judge Advocate was also designed, as proved 
by its general circulation by the War Department, that these despatches 
themselves proved no faithlessness on Porter's part to Pope or the country, 
either actual or contemplated. Whilst those which he does not give at 
all, or even allude to, with the exception of the one just mentioned, to 
McClellan, of 2d September, all demonstrate a fixed purpose and earnest 
solicitude to do his full duty to both. (The reader will find these despatches 
in pp. 228-235.) It is confidently asserted that every one of them evinces 
not only a mere willingness, but the strongest wish to do every thing 
in his power to render the campaign successful, or, failing in that, to les- 
sen, as far as possible, any disaster that might befall it, and especially to 
save the Capitol. His orders, too, to his corps commanders, to be found 
in the same pages, evidence intelligence, zeal and energy, and the des- 
patch referred to, to McClellan, of 2d September, whilst he was still 
under the command of Pope, and involved in his fate, breathes the same 



22 

patriotic spirit, That despatch was an answer to one from McClellan of 
the day before, urging him "and all friends" to give "the fullest and 
most cordial co-operation to General Pope." A despatch written, as 
McClellan states, (p. 197,) at the instance of and to satisfy the apprehen- 
sions of the President, and not to remove any apprehensions of his own. 
To quote McClellan's words : " I had no doubt then in my own mind but 
that the Army of the Potomac, and all connected with it, would do their 
duty without there being any necessity for any action on my part," To 
that message. Porter's of the 2d says : " You may rest assured that all 

YOUR FRIENDS, AS WELL AS EVERY LOVER OF HIS COUNTRY, WILL EVER 
GIVE, AS THEY HAVE GIVEN, TO GENERAL POPE, THEIR CORDIAL CO-OPERA- 
TION AND CONSTANT SUPPORT IN THE EXECUIION OF ALL ORDERS AND 
PLANS. OUR KILLED AND WOUNDED AND ENFEEBLED TROOPS ATTEST OUR 
DEVOTION TO DUTY." 

So conscious was Porter of having fully performed his duty, the mo- 
ment he received McClellan's despatch he sought Pope, showed it to him, 
and asked, " why he supposed such a despatch had been sent to him?" 
(P. 20.) Pope could give him no explanation. His answer to McClellan 
he was not allowed to send, but it clearly evinces the utter groundlessness 
of suspicion. His "killed and wounded and enfeebled troops" he points 
to, as he well might, as the witnesses of duty devotedly performed Of his 
command, gallantly led by himself, (for he ever led it,) in the battle of the 
3Uth of August, three days before, in a vain effort to turn the tide of Pope's 
defeat, and save the honor of our flag, consisting of about seven thousand 
men, he lost in killed and wounded over two thousand and thirty-two, 

INCLUDING IN THE KILLED ONE HUNDRED AND FIFTEEN OFFICERS. All this, 

however, in the view of the Judge Advocate, was "too late" — gallantry too 
tardily displayed — wounds and deaths proving nothing — patriotism and 
sense of duty speaking but for the day, and not an hour before The 27th, 
23th and 29th of August found him a traitor in fact, as well as intent. The 
30th, a noble soldier and patriot! And yet, with the transparent injustice 
of such reasoning, the Judge Advocate, without seeming to be aware of it 
and of its absurdity, tells the President and the country, in concluding his re- 
view, that "the Court was careful to give to the accused the benefit of all 
well founded doubts that arose in their minds in reference either to the fact 
of disobedience or in reference to the measure of criminality that prompted 
it, and hence found him not guilty of the 4th and 5th specifications of the 
first charge;" and that, in the same spirit of generous clemency, he himself 
withdrew "the 4th specification of the second charge." (P. 317.) 

And this statemenl is seriously made, without even intimating that in 
the support of the specifications of the first charge to which he refers, 
there was not only no evidence offered by the Government, but that what 
it did give, without considering what was produced by the accused, estab- 
lished the utter groundlessness of both ; and without informing the Presi- 
dent that the specification of the second charge, which he claims credit 



23 

for having generously withdrawn, related to Porter's conduct in the very 
battle of the 80th of August, where, under his lead; the battle ground was 
literally mired with the blood of his devoted followers, and where his 
efforts were so greatly instrumental in diminishing the disaster of the day. 
Having thus, it is confidently submitted, shown not only that there is 
no proof to establish the alleged criminal animus of Porter, but con- 
clusive evidence to the -contrary, the assumption of which animus consti- 
tutes the very foundation of the argument of the Judge Advocate, the 
charges and specifications wiil be considered ia their order, and in con- 
nection with the whole evidence. 

First Charge. — First Specification. 

The first charge was the " Violation of the Ninth Article of War," 
and the first specification, a failure to obey the following order of Major 
-General Pope, dated "Bristow Station, August 27th, 1862, 6.30 P. M., 
Major General F. J. Porter, Warrenton Junction :" 

"General: The Major Geueral Commanding directs that you start at 
one o'clock to-night, and come forward with your whole corps, or such 
part of it as is with you, so as to be here by daylight to-morrow morning. 
Hooker has had a very severe aetiou with the enemy, with a loss of about 
three hundred killed and wounded. The enemy has been driven back, 
but is retiring aleng the .railroad. We must drive him from Manassas, 
and clear the country between that place and Gainesville, where General 
McDowkll is. If Morell has not joined you, send word to him to push 
forward immediately ; also send word to Banks to hurry forward with all 
speed, to take your place at Warrenton Junction. It is necessary, on all 
accounts, that you should be here by daylight. I send an officer with 
this dispatch who will conduct you to this place. Be sure to send word 
to Banks, who is on the road from Fayetteville, probably in the direction 
• of Bealtcn. Say to Banks, also, that he had best run back the railroad 
trains to this side of Cedar Run. If he is not with yeu, write him to 
•that effect. 

"P. S — If Banks is not at Warrenton Junction, leave a regiment of 
infantry and two pieces cf artillery, as a guard till he comes up, with in- 
structions to follow you immediately. If Banks is not at the Junction, 
instruct Colonel Cleaky to run the trains back to this side of Cedar Run, 
and post a regiment and section of artillery with it." 

The Judge Advocate devotes five pages of his review to maintain this 
specification. With what justice, we will now see: 

First. — The order was to bring by the specified time, "daylight," the 
following morning, not a part merely, but his " whole corps," or the 



24 

whole of "such part as is with you." Porter had artillery with him, an. 
arm of vital moment, at the time, to the accomplishment of Pope's pur- 
pose, and to the safety of his own command. This part of his force, too, 
the body of the order clearly embraced. 

And if that could be doubted, the postscript made it clear. For in the 
postscript he was told that, in the event of his not finding Banks " at 
Warrenton Junction," he was to " leave a regiment of infantry and two 
pieces of artillery, as a guard until he comes up, with instructions to 
follow ;" that is, to follow with his own and these two pieces. The artil- 
lery of Porter was, therefore, manifestly included in the order. No part 
of that arm was to be left behind, except in the contingency mentioned, 
and then only two guns, and but for a time. On this fact, the Judge Ad- 
vocate is silent, although its significance is most important. The order 
exacted the movement of Porter's entire force, and embraced, in words, 
his artillery. To have left that behind, would have been disobedience ; 
and if any untoward result had ensued to his own command or to Pope's, 
he should, and no doubt would, have been held responsible. Nearly all 
the witnesses proved that the artillery could not have been moved at one 
o'clock. In this part of the case, and indeed throughout, the prejudice of 
the Judge Advocate reveals itself. After relying, and illogically and un- 
charitably using the portion of the evidence which he quotes, as bearing on 
the cpiestion involved in ^this specification, he tells the President : "That 
there are certain other facts disclosed in the testimony, which go far to indi- 
cate a settled purpose on the part of the accused to disregard " the order. 
On receiving it, he said to the Generals who were with him, "there is 
something for you to sleep upon," instead of telling them what the Judge 
Advocate, in his enthusiasm, says he should have told them, though he 
fails to say what that was. 

Conceding that what he did say is correctly given, one would suppose 
that if it did not for a moment excite the surprise of the officers to whom 
it was addressed, (and against whom no fault of motive or want of skill 
is attributed, and all of whom are now faithfully serving their country,) 
officers who knew the actual condition of things, and saw the manner and 
heard the tone in which Porter spoke, an unprejudiced mind would find 
in that fact alone, ample confutation of the imputation, and dismiss, as 
wholly unjust and uncharitable, all suspicious speculations that could be 
founded upon it. 

But Porter did not say what is stated by the Judge Advocate. The 
reliable proof is the other way. What he did say, was not in any degree 
"saddening or discouraging" to the officers who heard it, or to those 
who believe " that in the prosecution of this war, much vigor is much 
wisdom." In that maxim no one more decidedly concurs than Porter 
himself. This is evidenced by his whole conduct since the war com- 
menced. What he did say, on reading the order to his Generals, was 



25 

proved by General Butterfield, one of those present at the time. That 
officer states, that as soon as Porter received the order, he handed it "to 
General Morell or to General Sykes, who were present, and said there 
was a chance for a short nap, or something of that sort, (I do not remem- 
ber the exact words,) indicating that there was but little time for prepa- 
ration.'' 1 And the same witness further stated, that on objections being 
made by Sykes or Morell, or both, to marching at 1 A. M., (they both 
testified that they did so object,) Porter stated, what the Judge Advocate 
neither gives nor alludes to, "In reply to these remarks, General Porter 
spoke rather decidedly, that there was the order — it must be obeyed; 
that those who gave the order knew whether the necessities of the case 
would tcarrant the exertions that had to be made to comply with it. I 
do not state that as his exact words, but as the substance of what he said." 
(P. 185.) 

What evidence is this of want of vigor, or of a purpose to disobey ? 
No wonder that neither Sykes, Morell, nor Butterfield saw in it nothing to 
regret, — nothing indicating a purpose or a willingness to disobey the order. 
Nothing "to the last degree saddening or discouraging for those who 
believe that in the prosecution of this war much vigor is much wisdom." 
Nothing sad or discouraging at all, but on the contrary, an ardent desire 
to obey the order. The Judge Advocate, however, though he heard not 
the words, nor the tone, nor saw "the expression of the eye and the play 
of the features," which he tells us, "often afford a language more to be 
relied on than that of the lips," (p. 301,) ruminating in his study, and 
even without a Smith, or any other expert in the reading of " the inter- 
communings of spirits" to supply his own possible want of information, 
and, with assumed confidence, construes them to have been most sad and 
discouraging, and to have exhibited nothing of "vigor," or of "wisdom." 
Can this be reconciled with his well known ability, except upon the 
ground of his fixed antecedent hypothesis of Poller's guilt ? 

I. — But to the evidence. 

The order was received, as admitted by the Judge Advocate, between 
half-past nine and ten o'clock of the evening of the 27th of August. The 
Generals who were present, Morell, Sykes and Butterfield, all say it was 
about ten o'clock. 

IT. — "When was the march under the order begun ? 

The Judge Advocate says, it was not until about dawn. To make that 
statement good, he quotes a sentence or two from the testimony of a feu- 
witnesses. But why not all that these witnesses said ? And especially 
why not have given the evidence of the Generals, who were present when 
the order was received, and had charge of the movement, and of that of 
General Griffin, Lieutenant Colonel Locke, Captains Martin and 



26 

MnNTF.iTrr, and Lieutenant Weld ? In fairness, it is obvious that this 
should have been done. General Morel! was asked, "about what time did 
the march or movement of troops commence," and answered, "at three 
o'clock, or very mar thai lime. That was the hour designated " (P. 145.) 

General Butterfield, (by Presidential appointment the chief of Gene- 
ral Hooker's staff, whilst he was in command of the army,) says, that 
General Porter fixed three o'clock as the hour, and that the witness 
"wrote an order in General Porter's tent, for my command to be in line 
to march at three o'clock." And in reply to the question, "did you 
march or attempt to march at three o'clock, said, "I did;"" "I had my 
column formed and staff officers sent out to notify me where the head of 
my column should take its place in the line. AVe marched from the camp 
ap to the road, and there waited until we could take our place, which was 
at the rear of General Morell's division." (Pp. 185, IS6.) General Griffin, 
said, "I received an order about twelve o'clock on the night of the 27th 
of August, to move my brigade at three o'clock in the morning. At three 
o'clock in the morning I started from my camp towards Bristow Sta- 
tion, and inarched aboat a mile or two, to where I halted, and there I 
remained at the head of my column until about two hours after daylight. 
(Why this delay he satisfactorily explains.) (Pp. 160, 161.) 

Lieutenant Colonel Locke being asked, " did the corps march at three 
o'clock," answered, "yes 1 ' (P. 134.) Captain Montieth, "at what 
time that morning did General Porter begin to move his troops ?" "I 
should think it was about three o'clock. (P. 127.) And such is the testi- 
mony of all the witnesses upon this point, in fact of all who had the best 
opportunities of knowing, including the Generals whose duty, to move 
at three o'clock, under the order they all say they received from General 
Porter the night before, it was to see that that order was obeyed, and to 
superintend the movement. How idle is it to disregard all of this evi- 
dence as unreliable, and to find a fact inconsistent with it upon such testi- 
mony, little, too, as that is to which the Judge Advocate refers, and of 
that little to General Pope's, who was not present at the time, who, to an 
inquiry, "whether on the receipt of certain messages from the accused, 
the latter was on his march, in obedience to the order of ihe 27th of 
August," answered, " I do not know that he was. On the contrary, from 
a not.' I had received from him, (not however, produced, as were none of 
Porter's notes to this witness, who said that he had mislaid them all,) I 
did not understand that he would inarch until daylight in the morning." 
A story at war with the fact, that he had ordered the march to commence 
at three, and, as proved by the witnesses just referred to, that it did coin- 
at that hour. 
Put, independent of the positive proof as to the time of the march, and 
supposing that the mind could possibly doubt upon the point with that 
proof before it, what are the probabilities? Every General and other 



27 

officer present when the order was received, or who was ra I 
afterwards on that evening, tells us that Porter g 
march at three o'clock. 

If not obeyed, these Generals, who had to execute the order, were liable 
to censure. Who censures them? Not the G rernment, i 
F r, as before stated, and fortunately for the country, tl 
in high favor Toner is the only victim. He alone 
or rather as far as his reputation is concerned, a futile effort has 
made to sacrifice him. 

ni. — Bnt. admitting that he did begin his march at three. A. M . the 
Judge Advocate maintains that he was guilty of disobed 

- nee of the Court, because he should have marched, or atteii; 
to march, at 1 A. ML 

How - io that respect the order was, it was eonfid' 

in the defence, upon the author ry maxim \ 

pass to a military order is 

by a - is sent the spot at the moment when he _ 

The an: this maxim is'not - _ —he 

only deni s its pplieation in this instance. And fa ibt- 

inglv. "Nor is it bel says he,) that the accused cai - 

ter " and< . it And why — can the reader in. _ se, as this -ffi- 

cial military st £ - the discretion il 3 to a £ - 

• • erior oft\- :\ is under* 
not an order. W -terniined thai 

starting at one o'clock he would three or four, 

hour, for all agreed that Porter ordered the march 
did not resolve he would ar Bristow S 

ent manner from that indicaf by his _ 

:ve there by laylig [n regard i of 

r, he had no discrel h 

What! ty. A just and . Judg 

- t is £ 

A f serrations show the weakness of t 

J |g _'. 

I. In the first place, no such qualification of the I 
- _ _ s great r. His language is g 

of end as s s. Pass 

lar. whether of end or mea: s, is not 1 
s it is e place 

N oleon, such obedu is 1 

. r who is ue 



28 

gives it." And, as was his wont, he assigns succintly, but clearly, the 
reasons for the rule Having then, (that is when he is present on the 
spot,) knowledge of the state of things, he can listen to the objections, 
" and give the necessary explanations to him who should execute the 
order." This, of course, he cannot do when he is not present. To en- 
force absolute obedience to an order given by a superior who is not pre- 
sent, and may not know the condition of the countiw, or the difficulties in 
the way of its execution, might at times lead to the most disastrous re- 
sults — imperil a corps, frustrate the very purpose of the superior, and so 
far from aiding, lead to his utter defeat. 

II. What authority, other than his own, is there for his statement, that 
the maxim " is understood to relate to the means and not the end of an 
order ?" He cites none. "Would he not, if he had known of one ? And 
would he not have known if there be one ? He shows himself to be 
fond of military literature, and to have its leading points fastened in his 
memory. He graphically calls to the President's recollection, the stirring 
scenes of Hohen Linden — the great gallantry and matchless energy of 
Richpanse — the dashing onset of Ney, and unites his own tribute to that 
of the renowned historian of The Consulate and the Empire to the con- 
sumate skill of Moreau, as being illustrated more brilliantly than in any 
of his other battles in this, " the greatest in the present century." 

Who can doubt that a mind which so evidently delights in military 
reading, and whose office of Judge Advocate General makes it his duty 
to do all that he can to master the science, as far, at least, as concerns 
obedience to orders, could have failed to discover in what authority, great 
or small, it is stated, that the quoted maxim of Napoleon was understood 
by him or any one else, military man or not, to relate "to the means and 
not the end of an order." 

III. But conceding, for a moment, that such is its meaning, how does 
that meaning deprive Porter of the benefit of the maxim ? 

I. It is said by the Judge Advocate, that "the end of the order was 
that Porter should be with his command at Bristow Station by daylight 
the following morning." 

II. That Porter did not decide to get there at that time, "in a different 
manner from that indicated by the order, but that he would not get 
there at all, at that time, and that as to get there at that time, was "the 
end of the order, he had no discretion upon the subject." Was the end 
of the order as suggested ? The end must be the object to be accom- 
plished by the order. The order stated that " Hooker has had a very 
severe action with the enemy, with a loss of about three hundred men 
killed and wounded. The enemy has been driven back, but is retiring 



29 

along the railroad ; we must drive him from Manassas, and clear the 
country between that place and Gainesville, where General McDowell is." 
To clear this portion of the country, then, was Pope's object. He issued 
the order with that view. As a means to effect it he desired Porter's 
corps. In what condition ? In fighting condition. In what way to get 
to him ? By the best and shortest way. Time was important, but time 
was to yield to the object to be accomplished. Pope did not, and could 
not, know what would be the condition of Porter's command when the order 
would be received. He did not fully, if at all, know the condition of the 
roads, nor what would be the character of the night. In his designation 
of the time of arrival at Bristow's Station, did he mean to say, that no 
matter in what plight the troops should be, — how far they may have 
marched that day and evening — what meals they may have had — what 
rest — what the state of the roads — what the character of the night, and 
what the opinion of every officer of the command as to the practicability 
of getting to Bristow Station at daylight — did he mean that, regardless 
' of all these considerations, the order was to be literally obeyed. He did 
not, and could not have been supposed by Porter to have so meant, ex- 
cept on the supposition, that he was an imbecile. The character for intel- 
ligence of Pope, therefore, should save him from the damaging effect of 
such a proposition. But in fact that was not his meaning. His conduct, 
the next day, when the troops did arrive at the designated place, which, 
he says, was 10.20 A. M., (Porter was, in fact, there about 8 A. M.,) 
(p. 19,) proves, that he was guilty of no such folly. His order, accord- 
ing to the view, adopted by the Court and by the Judge Advocate, 
had been shamelessly disobeyed. He had every reason, that view assumes, 
to know that it might have been obeyed. That Poi'ter should be there at 
daylight with his command, was, it is said, the very end of the order. 

That end had failed without justification or excuse, says the Judge 
Advocate. If so, how are we to account for the manner of Pope's recep- 
tion of Porter at 8 o'clock that morning, or at any time after the command 
arrived. On cross-examination, Pope was asked " had you any conversa- 
tion with him, (Porter) in relation to the order of the 27th, and his having 
obeyed or disobeyed, and if so, what." He answered, "I do not remem- 
ber any conversation witli him in reference to obeying or disobeying the 
order, although I had much conversation with him." In replying to an- 
other question, requesting him to try and refresh his recollection, he said 
" I should not be likely to complain to my subordinate oilicer of a dis- 
obedience to my orders, (why he does not explain, except that Porter 
was his subordinate,) I am therefore very sure that I did not com- 
plain to General Porter." He added, "I am not sure that he gave 
me any explanations. I have a general recollection that he spoke to me 
of his march, and the difficulties thai he had in getting wagons nut of 
the road, but the particulars I do not remember, for I was very much 



30 

occupied, and the necessity which made his presence important had 
passed away." (P. 18.) On his examination also, in chief by the Judge 
Advocate, he was asked, "did he (Porter,) at that time, (the time of his 
arrival,) or at any time before," " explain to you the reason why he did 
not obey the order." He answered, " He wrote me a note which I re- 
ceived I think in the morning of the 28th, very early in the morning, 
perhaps a little before daylight. I am not quite sure about the time. 
The note I have mislaid (as before stated, he said that he had mislaid all 
of Porter's notes to him, strange negligence this, and one that credulity 
itself could scarcely believe, if the witness' character for veracity, and his 
repugnance to exaggeration, either delicate or gorgeous, was not so 
universally acknowledged.) I can give the substance. I remember the 
reasons given by General Porter, if it is necessary to state them, I 
can do so." Porter enquired if the witness had looked for the note, 
and he said he had, "but had not been able to find it." The Judge 
Advocate then, although the enquiry was Ms own, and Porter said 
"I do not object" to the witness giving his recollection of the con- 
tents of the notes, said "I will not press the question." (P. 13.) It 
appears then, that Pope had received before daylight on the 28th, from 
Porter a written note, giving his reasons why he would not be able 
to execute his order literally. He sent no answer reiterating the 
order, nor did he rebuke, or in any way find fault with the failure in its 
passive obedience. And when Porter and himself met face to face, at 
8 A. M., and afterwards on that day, and also during the whole time, 
when Porter was under his command, and the whole subject was spoken 
of between them, and the difficulties of the actual march explained, did a 
single word, as Pope testifies, escape him, even faintly murmuring regret, 
much less censure ? This of itself is conclusive of the groundlessness of 
the charge. The officer who gave the order, when he was made ac- 
quainted with all the circumstances attending its execution found no fault. 
Defeat had not then given his pride of command a sore wound. His 
ambition he no doubt thought would yet be gratified. He had at the 
time, Porter and his command with him, and he trusted as he well might 
to both, and by his own conduct at that time, it is demonstrable that he 
never intended to charge Porter with disobedience to that order. His 
doing so was obviously an after thought. Defeat and not success was 
soon his fate. Defeat, great, overwhelming defeat. The public were 
indignant. If the result could not be attributed to Pope, (and that it could 
be it is not necessary here to charge,) the getters up of the campaign as well 
as Pope, impelled by natural mortification, looked for escape from the cen- 
sure which they were certain to receive, to any victim that could with 
the slightest probability be found, and Porter was selected. His conduct, 
his disobedience, his meditated treachery were at once alleged to be the 
cause of the defeat. His telegrams were searched and critiscised, his con- 
versations hunted up and examined, and each expression, howsoever made, 



81 

or to whomsoever made, evincing a want of confidence in Pope's skill and 
capacity for the command, were seized upon and pressed into the service. 
Whilst it is known that some desired his life, the Court satisfied itself 
by displacing him from the army, and idly assuming to disfranchise him 
from all places of honor and trust under the Government. And yet, who 
in his senses concurs in the justice of that sentence, or fails to stamp it as 
a gross wrong to Porter and the country. For a time he may not again be 
permitted to honor his profession, and serve the nation by other deeds of 
skill and valor, but of the past, he is not deprived. The place in the 
hearts of his fellow-citizens, which he filled after his crowning achievement 
of Malvern, is his still. And soon will the people order those, who, as 
they should do, ivill listen to the public voice, and be alive to the public 
honor, that he must be restored to their service, and afforded an oppor- 
tunity of adding, if that be possible, to his own reputation, and to the 
military renown of the nation. But to return to the evidence. It is true 
that to a certain extent he critisizecl in his dispatches to Burnside, the 
plans of his chief. As he did it, was it a crime in any view, military or 
otherwise? His critisims were for the eyes of Burnside only, and of 
those of the President and Commander-in-Chief, to whom he must have 
known, they would be communicated. If he really believed in their truth, 
so far from offending, it was his duty to give the information, and instead 
of being punished, he should have been thanked by the Government. 
Not only was the honor of the flag involved, but the very safety of the 
capitol. Porter saw that both were in danger by what he believed to be 
the incompetency of Pope. Was he to keep this conviction in his own 
breast, regardless of the army and the nation ? Or was he not on the 
contrary, bound to speak his fears to those who had the power to guard 
against the apprehended peril ? Were his fears honestly entertained ? 
Was his motive for stating them patriotic ? Let his dispatch to McOlel- 
lan of 1st September, 8.30 P. M., give the answer. After telling him of 
Bayard's report of the movements of the enemy, he says, 'I can see the 
dust and flags : columns evidently moving directly north : evidently to- 
wards Leesburg. If you can, I hope you will protect the fords into 
Maryland, and guard the Railroad to Baltimore. I think we will have a 
fight before night. The enemy are between us and Fairfax Court House, 
and shelled our trains last night. We will fight, or they will avoid us, 
and strike our rear first. We have been held on thirty-six hours too long, 
and we are bound to work our way to Alexandria. I only regret that we 
have not been distributed to forts, and to the fords over the Potomac into 
Maryland. God speed your operations, and enable you and others 
in authority to save our Country.'' (P. 233.) His whole thoughts 
were evidently given to his country, its honor, and its safety. He appre- 
hended, aud as the result proved correctly, the marching of the enemy 
into Maryland, and perhaps further North. He was alarmed too, (it was 
the alarm of a brave and patriotic man,) for the safety of the capitol. 



32 

He ardently wished to avert both dangers, and in words of patriotism 
that evidently gushed from his heart, he invoked McClellan to be on the 
alert — to watch the foe, and guard the passes, and prayed God to " speed " 
his " operation, and enable him," and " others in authority to save the 
country. "' Alas, for our good name, this is the man who is charged with 
faithlessness to duty and treason to the nation. And as yet more dis- 
honoring to it, this is the man whom a Court consisting of nine officers, 
have been induced to find guilty of the foul dishonoring crime, and whose 
sentence is supported by the highest military, legal officer, and in a 
moment of blindness to justice, the result of over confidence in others, a 
sentence which the President, whose mind is naturally honest, to the 
prejudice of his own good name, without taking time properly to 
investigate the subject for himself, promptly approved. But is criti- 
cism on a commander's capacity, or of his plans by a subordinate offi- 
cer so criminal as to demand, or at all justify dismissal from service 
The wars of Europe furnish very many instances to the contrary. Even 
Napoleon, the strictest of disciplinarians as well as the greatest military 
man the world has ever known, not only did not punish, but encouraged 
it. He went further, he excused at times even a failure to obey orders. 
It is singular that this was not in the memory of the Judge Advocate, 
affluent as it would seem to be with such learning. 

When Massena, in 1810, was, against his wish, placed by Napoleon in 
command of the Army of Portugal, and in spite of his criticisms to Napo- 
leon himself on his plan of campaign, in obedience to orders, decided to 
Lay seige to Ciudad Rodrigo, overruling in that respect the advice of his 
subordinates, Junot and Ney, who recommended an attack first upon that 
part of Wellington's Army encamped at Viseu, Theirs tells us, that those 
two officers "spread abroad amongst their several corps, that it was Mas- 
sena, who, grown old, and no longer the same man, preferred wearisome 
and murderous seiges to an active and " decisive campaign." (Vol. 12, 
History of the Consulate and the Empire, London edition, p. 151.) To 
criticise Napoleon, to advise against his plan of campaign, was harmless 
in Massena, and to disparage Massena with his army, was harmless in 
Junot and Ney. But for Porter to question Pope's plans, to speak des- 
pairingly of his strategy, though only to the superiors of both, to evince 
for Pope as a commander, though only to the superiors of both, "con- 
temptuous and unfriendly feelings," is not to be tolerated or excused. 
Pope should have been held sacred, because infallible, and Porter con- 
demned for questioning it — whilst Ney and Junot and Massena were pro- 
perly esteemed guiltless, because Massena and Napoleon possessed no 
title to infallibility. 

II._-On the 12th of March, 1811, after the triumph of the French in the 

battle of Redinha, Massena, who was still in command, implored Ney "to 
resist to the utmost, as the nature of the ground would well enable him to 



do, on his way to Condeixa." " Scarcely," says the same historian, "had 
Massena departed, than Ney began to wa^ch the least movements of the 
English," and, hurried on by the fear of "being isolated from the main 
body " of the French army, " he disputed but for a few moments the heights 
of Condeixa, and then hastened to quit them." As soon as Massena heard 
of it he was indignant — "expressed aloud his indignation to Fririon, the 
chief of his staff, and was so greatly angered as to entertain for a moment 
the idea of depriving Ney of his command, and yet the purpose was only for 
a moment entertained, and, as far as we are informed, when he was ac- 
piainted with it, Napoleon never entertained it even for a moment, or thought 
that it required him even to censure Ney. Ney had, however, clearly 
violated a positive order, and by doing so, as the historian tells us, "for the 
sake of avoiding an imaginary, or, at most, doubtful danger, he exposed 
the army to certain peril, (ib. pp. 210, 211.) How striking is the con- 
trast, even supposing an intended violation by Porter of the order of 
the 27th of August, between the conduct of Massena and Napoleon in 
Ney's case, and that of Pope, the Court, the Judge Advocate, and the 
President, in Porter's case. 

Ill— In November, 1812, when Wellington's whole army did not 
exceed sixty thousand men, and King Joseph's, Napoleon's brother, num- 
bered eighty-five thousand, and Hill's command, left by Wellington at 
Alba de Tormes, fifteen thousand, the King, Jourdan and all the Gene- 
rals but Soult, advised an " advance between the English Generals. 
Soult opposed it, and from deference to his authority the project, which 
was apparently perfectly practicable, and might have led to the destruc- 
tion of the English army, was abandoned, and another plan, advised by 
Soult, adopted. And then, on the 13th of the same month, when the 
French crossed the Tormes above Alba, and advanced as far as Neustra, 
Senora de Retiro, the King and Jourdan insisted upon the advisability of 
throwing the French cavalry upon the English army, visible on the right, 
Soult objected to the measure, on account of the obscurity of the 
atmosphere, &c." " and the result was that when the eighty -five thousand 
French troops were assembled the English were already out of their 
reach, and in full retreat upon the Cuidad-Rodrigo route," and the ob- 
ject of the campaign thereby lost, (ib. vol. 15, pp. To, 74.) Soult never- 
theless was continued in command, and escaped, as far as we know, even 
censure on the part of Napoleon. It cannot be necessary to multiply 
instances from European armies. There are two recent ones, in our own 
army, occurring under the very eyes of the Government, that also strongly 
illustrate the injustice of the strict rule applied to Porter. 

I. Whilst the Court Martial in his case was in session, and in the same 
building, a military inquisition, instituted at the request of Major General 



34 

McDowell, of an extraordinary character was examining into the conduct 
of that officer, and with power to investigate his whole military career, 
although no charges of any kind had been made against him by any one 
in authority. Why this favor was shown to McDowell, and Porter was 
held to rigid and most technical proof, created in the minds of the ob- 
serving, greal surprise ; but it is referred to in this connection with no 
view to censure. In the course of that inquisition, it appeared that 
McDowell had received a positive order from Pope, (under whose com- 
mand he was,) which he failed to obey. Instead of doing so, he left his 
own troops and went in search of Pope, whose exact locality, however, 
he did not know. For this separation from his own corps, say the Court 
in his case, there was "clearly" nothing in another order upon which he 
relied, which contained even an implication to justify it. The result of 
his conduct, too, in that particular, had proved most disastrous, as 
proved by Pope, whose evidence in regard to it was adopted by the 
Court. Upon hearing of the battle, that a part of his corps had had that 
evening, Pope said: "I stated to several of my staff officers who were 
present, that the game was in our own hands, (meaning, if his order had 
be 'ii executed,) that it was impossible for Jackson to escape without very 
heavy loss, if at all." 

McDowell's excuse, that he desired to give "the expression of his 
view,- to General Pope in person," "could be of no avail when the mis- 
conduct of his own corps thwarted a plan, the execution of which afforded 
an opportunity for speedy victory." 

To this unauthorized and inexcusable failure of McDowell, if it frus- 
trated, as Pope says it did, the almost certain destruction of Jackson's 
command, and probably its capture, may with much more show of reason 
be attributed the failure of the campaign, (if that was not owing to the 
inherent defect of the plan of the campaign and the incompetency of the 
commander,) than to any or all of the failures, even were they established, 
alleged against Porter. 

lie. however, is cashiered, whilst McDowell is honorably acquitted, and 
at once placed on important duty, because, as the Court in his case say, 
gross as his fault was, "grave" as the " error committed by him," (disobe- 
dience of an express order, which, as the Judge Advocate says, and cites 
De Hart for it, "is a crime which the law has stigmatized as of the highest 
degree, and againsl which is denounced the extreme punishment of death,") 
"his subsequent efforts, on the 29th, to repair the consequences of that unfor- 
tunate movement of his corps, and to press them forward into action, were 
earnest and energetic, and disclosed fully that the separation of which 
this Court has stated its disapproval, was inconsiderate and unauthorized,, 
but was not induced by any unworthy motives:'' The italics are the 
Court's. And this moderate reproof, if reproof it can be called, is for the 
violation of a clear, positive order, leaving the subordinate no discretion, 



35 

and committed upon his own judgment alone, without consulting, for 
aught that appeared, a single officer in his command. 

His conduct "was not induced by any nnworthy motive." Evidenced, 
in the Court's view, by his course on the following day. Had he con- 
fidence in Pope ? Was he asked ? If he had been, who thai knows him, 
can doubt what his answer would have been, had he said what he thou- In ? 
The very fact, that at such a moment, he left his command in the hands of 
his own subordinates, to find Pope, to counsel with him as to the very 
order, and probably to advise against it, evinces strongly such want of 
confidence. But his next day's conduct exempts him from serious censure, 
as it proved his "motive" pure. And, besides, adds the Court, " i 
itself bound (why, but because it was material to the inquiry) to report 
the fact, that his commanding officer (General Pope) not only omitted to 
hold him culpable for this separation, but emphatically commended his 
whole conduct while under his command, without exception or qualification. " 

How different the facts and the course of the Court in Porter's ci 

I. Before deciding not to attempt to execute the order of the i27ih by 
marching at 1 A. M., Porter was strongly advised against it by all of 
his general officers who were present when he received it. Officers, who 
have ever been above all suspicion of want of fidelity, and who now, and 
deservedly, stand high in Executive favor. On their almost positive re- 
monstrance, he only agreed (they could persuade him to no longer delay,) 
to wait till 3 A. M., but two hours, and he and they issued at once their 
orders accordingly ; and who also proved that Bristow Station was reached 
as soon as if the march had been attempted at one. 

II His conduct on the bloody field of the 30th, red with the blood of 
thousands of his command, and illustrated by his usual fearless gallantry, 
and greatly diminishing the day's disaster. 

III. Not only the omission of Pope even to intimate to him that he 
was held culpable for the alleged disobedience of the order of the 27th, 
but telling him, a.^ he almost admits in his own evidence, and as was posi- 
tively proved by Colonel RuGGLES, (hereafter to be given.) that he had no 
fault to find; but, on the contrary, was satisfied with his whole conduct, 
and his omission afterwards to report him to the Department, were all. in 
the judgment of the Court in his case, of no importance whatever, proving 
nothing in his favor, either as to act or intent — having not even a ten- 
dency to show that in his conduct in relation to the order, he " was not 
induced by any unworthy motive.' 1 For the one — McDowell — fac 
the same character, not as strong, are a conclusive defence to proved dis- 
obedience. For the other — Porter — such facts, if they have any i 
either come "too late,'' or prove nothing, or if anything, prove guilt. 



36 

Such is the striking difference in the administration of its justice, exhib- 
ited by the Government through two of its Military Courts towards these 
two officers. The one, adjudged to be guiltless, and no doubt properly, 
who. from misfortune rather than want of skill, had signally failed not 
only to excite the admiration and gratitude of the Republic, but had 
received its censure — the other, adjudged guilty and cashiered, who, 
throughout his career, had evidenced rare skill and daring courage, and 
in the public estimation had won for himself a name of which the best of 
Napoleon's Marshals would have had reason to be proud. 

How is this to be explained, and the reputation of the Government to 
pass unharmed ? Can any reflecting, unprejudiced citizen give a satisfac- 
tory answer? And yet, how priceless to a "nation is even-handed 
justice." How imperative the interest, and the duty, to observe and en- 
force it. 

But the opinion of the McDowell Court furnishes another instance of 
duty not performed in the same unfortunate campaign, and at the time 
known by Pope not to have been performed, and also by the War De- 
partment and the President, after that opinion was given — and yet, to 
this day, not even censured. And what makes that instance the more 
striking, is, that it was on the part of General King, one of the members 
of the Court that convicted and sentenced Porter, The division of that 
officer, as Pope testified before the McDowell Court, had had a successful 
fight with the enemy, " who were retreating from Centreville, on the night 
of thi' 28th of August, had remained masters of the field still interpos- 
ing between Jackson's forces and the main body of the enemy, and that 
the information was, he thought, brought to him by a stall' officer of 
General King." This tided him, as it well might, with high hopes of suc- 
cess, and he says that he "immediately" "directed General Kearney, 
whose division occupied Centreville, to push forward cautiously at one 
o'clock thai night, in the direction of Gainesville, to drive in the pickets of 
the enemy," etc. " 1 directed him, at the first blush of daylight, to attack 
the enemy with his righl advanced, and informed him that Hooker and 
R,ENO would lie with him immediately after daylight, To my surprise 
and dissatisfaction, I learned towards daylight, on the morning of the 
29th, that Kin-'- division had been withdrawn in the direction of Manas- 
sas Junction, leaving open the road to Thoroughfare Gap. This with- 
drawal of that division made necessary a great change in the movement, 
and was a most serious ami unlooked-for mistake." McDowell, under 
whose command King was, had before left his corps improperly, as the 
Court found, lie, of course, did not give King the order to withdraw. 
If he had, the Court says, "it could not be controverted that he would 
be justly held responsible for their retreat, and the consequent derange- 
ments of the plan of battle then formed by General Pope." By whose 
order, then, was the retreat made? By King's. Why was not he called 



37 

to answer for it ? Did he know that it was important to hold his ground ? 
Pope says that he was " so impressed with the necessity, that that division 
(King's) should hold its ground, that I sent Beveral orders to General 
King-, (one by his own staff officer,) during that night, to hold his 
ground at all hazards, and to prevent the retreal of the enemy, and in- 
formed him that our whole force from the direction of Centreville and 
Manassas Junction would fall upon the enemy at daylight." 

The testimony of General Pope, in relation to these orders, the Court 
adopt, "as a faithful statement of the facts. *' Was the first order, or 
either of the succeeding ones, known to or received by King? [f they 
were, how is it that he has not been charged with disobedience? If he 
did know of the orders, did he satisfy his before surprised and dissatis- 
fied chief that he had good grounds for his disobedience, or, at It 
that he " was not induced by any unworthy motive." or has hesince satisfied 
the Department? If he has, then disobedience is not always censurable. 
Then "the Napoleonic maxim" includes ends as well as means. 

That General King, who is known to be a patriotic soldier, had good 
motives for his failure, disastrous as Pope says it was to his plans, those 
who are acquainted with him will readily believe. 

But to condemn Porter of disobedience, and to cashier him, in the face 
of the reasons which are proved to have governed him, the concurrent 
and strong advice, and almost remonstrance, of his three Generals, and 
when the order itself afterwards proved to lie useless, and not only not 
to question King, but, on the contrary, to make him one of Porter's 
judges, and to continue him in high command, is conduct on the part of 
those in authority which no explanation can justify or excuse. 

III. A yet more recent case, in the Army of the Potomac, illustrates 
still stronger the injustice done to Porter. On the removal from its com- 
mand, as we all unfortunately now know it to have been, of General 
McClellan, General Burnside was placed at its head. The high character 
for gallantry and patriotism of that soldier no one that has watched his 
career will ever question. Whether it was well or ill advised, his subse- 
quent attack on the enemy at Fredericksburg, proved most disastrous. To 
redeem the honor of his army, and retrieve, at the same time, his own 
weakened reputation, he resolved on another attack, and on a different 
plan. This was at once, not to him only, but to all, criticised with 
severity by his officers ; and two of his Generals, with, as it was stated, the 
knowledge of others, visited the President to protest against it, and did 
SO. The result was that the President, on their advice, prohibited the 
movement. Burnside at once, before he had seen the President, for this 
insubordination, issued an order, subject to the President's approval, dis- 
missing from the service several of the highest officers in his command, 
and many others, and, soon after, informed the President in person that 



his sanctioning the order was indispensable not only to his remaining in 
command of the Army, but to his continuing in the military service. He 
testified, as the reader will remember, before the Committee of Congress 
on the Conduct of the War, that the President told him that his order of 
dismissal was right, but that before acting upon it, he must consult his 
advisers, and that by persuasion he induced the witness to relinquish his 
purpose to leave the service. The result, and as it is to be supposed of 
his consultation with his cabinet, was that not only were none of the 
officers who were to be dismissed by the order dismissed, but, on the con- 
trary, that Genera] Hooker, one of the number, was put in the chief 
command. 

Here again criticisms showing, if unexplained, "contempt" for the 
skill of a Commander-in-Chief may be so explained as to be held inno- 
cent, and may even place, notwithstanding his own example of insurbordi- 
nation, one of the critics in the place of the chief. 

TV. Another strong instance must be in the recollection of all. 
General Charles P. Stone, more than a year since, for alleged disloy- 
alty and insinuated charge of treason, was taken from his then command 
and for many weary months imprisoned in Fort Lafayette. Futile were 
his and his friends efforts to ascertain what were the specific acts of dis- 
loyalty, or the grounds of imputed treason. No explanation was given 
or could be obtained. And when his case was made a matter of inquiry 
in the Senate of the United States, the Chairman of the Military Com- 
mittee of that body, who was also Chairman of the Committee on the Con- 
duct of the War, stated, in substance, that the evidence before the latter 
committee fully justified the imprisonment, — and the President afterwards, 
in replying to a call of the Senate, virtually said the same thing. But 
now what a change. No Court Martial or inquiry was ordered, though 
frequently solicited by Stone. No specification or other definition of the 
charges ever given him, and yet but the other day he was ordered into ser- 
vice in the Army of the Gulf, and is now at the head of the command which 
recently so distinguished itself under the head of the gallant Sherman. 
Porter's ease then, though of the same character of those named, is the 
only one which, in the opinion of the authorities, it has been deemed 
necessary to inquire into, much less to punish. He is the only officer who, 
upon such grounds, has been held unfit for a service, which he has so 
adorned, and not to be relied upon to aid the country, which, during the 
present war, he has so signally served and so fondly loves. 

lint to return to the evidence, it is said by the Judge Advocate, that 
neither the character of the night, uor the state of the road, nor the con- 
dition of his command excused Porter, for his failure literally to comply 
with the order to start at 1 A. M. 

These objections will be considered in their order. 



39 



I. — As to the Night. 

Its darkness had been given as a reason for not starting al 1 A. M. 
The Judge Advocate answers this as he does everyparl of the casi 
giving but detached and partial statements of the evidence ,of a few ol the 
witnesses, and omitting altogether what was proved by those who were 
clearly the most to be relied upon. The parts of the testimony thai he 
does give, are from the evidence of Captain Duryea, Major Barstow, 
Lieutenant Colonel Myers, General Pope, and General Roberts. What 
was proved by Generals Morell, Griffin, Sykes, Butterfield, and B 
nolds, Colonel Cleary, Lieutenant Colonel Locke, Captains Pifield, an 
Monteith, and Lieut. Weld, all present when the order was received, 
or was being executed, is not given at all, and the reader will ask why ? 
And can he give a satisfactory answer. This obviously unfair omission 
will now be supplied. 

1. Morell says : " It was a very dark night. It was cloudy, threatening 
to rain, and did rain before morning.'' (P. 145.) 

2. Griffin.' — "The night of the 2?th, and the morning of the 

■as very dark," I "kuow that at three o'clock, it was very dark, so dark 
that I used caudles with my leading regiments to get through a little pi 
of woods which we left, in which we had been encamped." (Pp. 160-63.) 

3. Sykes. — "The night was unusually dark." "Before I din 

the advanee to be sounded, I sent an aid-de-camp to find the road, so as 
to lead the column upon it. He returned in a short time, and told me 
that the darkness was so great, that he could not distinguish the road. 
He also told me that he was assisted in that search by several .-" ; - 

(Pp. no, m.) 

4. Butterfield, after stating, as before mentioned, what occurred in 
Porter's tent, when the order was received, and Porter's answer to 1 
objections of his Generals to his marching at 1 A. M, added: "When 
we got outside, the darkness was so apparent, (to use such an expression,) 
and it seemed such a matter of impossibility to move, thai General P< 
said, in consideration of all the circumstances, i will fix the hour at three 
o'clock instead of one. You will be ready to move promptly/' lie 
stated that De Kay, who was sent by Pope with the order, said "that it 
would be very difficult in getting back. That he would have hard 

to find the way."" (Pp. 185, 186.) 

5. Reynolds, (alas now of our illustrious dead.) "It was a 
dark night, as was the succeeding night. I recollect both of them distinctly 



40 

from having been about a good deal, until after 12 o'clock on each 
night." (P. 169.) 

6. Cleary " It was dark, cloudy." (P. 121.) 

1. Locke. — The night was " extremely dark." U I received a very 
severe injury, groping aboict in the darkness." (P. 134.) 

8. Fif.eld. — " The early part of the night was an ordinary star light 
night of summer, without any moon. About half past 11 o'clock, it com- 
menced overcasting, and threatened rain. Very black clouds came up, 
and it did sprinkle a little. If was very dark from that time till towards 
morning." 

"It was very dark," "everything so obscure from the extreme dark- 
ness of the night, that it would be very difficult for me to give anything 
like a reasonable answer, in regard to that matter." (The matter was as 
to the extent and density of the wood along the road.) He also said 
"the night was very dark, and it was like a man groping his way in the 
darkness, without being able to see his hand before him, much of the way 
through the wood. (Pp. 122-125.) 

This witness testified also that he was on duty from half past 10 o'clock, 
the entire balance of the night. 

9. Montieth.— The night was "very dark." (P. 126.) 

10. Weld.— The night "vMs very dark indeed." (P. 129.) 

With all this evidence before him, the Judge Advocate advises the 
President, that the night was not so dark before 11 o'clock, at least, if at 
any hour > ,e made it impossible for Porter, "to obey the order," 

to move at 1 A. M., and that it was a noticeable fact, "that the deter- 
mination not to move at that hour, was not occasioned by this extreme 
darkness, ("the admission that the darkness was extreme, thus leaked out,) 
but had been taken before Captain De Kay laid down, which was at 
11 o'clock." And this is told to the President, though the Judge Ad- 
vocate knew, or should have known, that General Butterfield had before 
testified positively, that Porter, and that, too, unwillingly, only agreed to 
postpone the time of marching from 1 to 3 A. M., when he, with his 
Generals, got outside of his tent and saw, "the darkness so apparent," 
imed to lie such a matter of impossibility to move." It was 
then, and not before that Porter yielded to the advice and remonstrance 
of his three Generals, saying, "in consideration of all the circumstances I 
will fix the hour at three o'clock, instead of one." Why was the fact repre- 
sented otherwise, and without even an intimation, that there was proof to 



41 

the contrary? And especially, why was the President not inform 
this evidence of ButterGeld ? It cannot be necessary to say more on this 
head. 

II. — The Condition of the Road. 

That, says the Judge Advocate, afforded no excuse for failing to march 
at 1 A. M. However dark the night was— what ever may have been the 
condition of his men — however worn down by immediately preceding day 
and night marches — however deprived of rest and food, thi othing 

in the condition of the roads, that offered even an apology for not moving. 
But to the fact. What was the condition of the road ? 

The witnesses who were on the road that night. Major Cleary and Cap- 
tain Fifield proved beyond all cavil, the existence of serious obstrui 

1. Cleary. — "At 10 o'clock that night, I received a note from General 
Porter to move the trains east of the railroad beyond, and east of I 
Run, towards Bristow Station. I gave the order to the proper pi 
connected with the trains, and they commenced immediately to move," 
"the removal of the trains occupied me from 10 o'clock, till two o'clock in 
the morning, at which time, or perhaps a little later, I myself left that 
point for Bristow Station." "The road for some three miles. I think, was 
occupied by wagons, and was obstructed so as to render it very difficult 
for me and my party to pass along." (P. 121.) He testified also that his 
party consisted of ten or twelve persons only, that he travelled on horse- 
back, and that they did not get to Bristow Station that night. 

2. Fifield. — He testified that he received through Colonel Cleary, an. 
order from General Porter on the evening of the 27th of Augusl 
have the trains moved from Warrenton Junction down as far as possible in 
the neighborhood of Bristow Station." He said that he proceeded to exe- 
cute it, and that it was not fully effected till about four o'clock in the morn- 
ing, because it could not have been sooner done, and added, " that the mov- 
ing of the trains during the night, would have prevented the possibility of 
moving troops on the Railroad track." lie also said, that between 
"three and four miles" of the road, (not the Railroad,) was occupied bj 
wagons, and in reply to inquiries of the Judge Advoc I, " I know 
of no road except on one side, (that is on one side of tie' Railroad,) ami 
that the wagons on that, "were very much jammed and remaining 
tionary. I found a great deal of difficulty even in getting tie- 
on horseback." (Pp. 122-124.) 



42 



III. — The Condition of the Troops. 

1. Morell. — " They were eery much exhausted from their previous 
marching. They had marched all the way from James River, except 
from Portress Monroe to Aquia Creek." "They had marched (labor- 
iously) ami as last as possible," "and sometimes at night." On being 
told by roller of the order, he said, that he, and Sykes and Butter field, 
" immediately spoke of the condition of our troops, they being so much 

well as of " the darkness of the night, and told him that we 
did nol believe we could make any better progress by attempting to start 
at that hour, (1 A. M.,) than if we waited till daylight." (Pp. 144, 145.) 

2. Sykes. — I told Porter, on his informing me of the order to march 
at one, A. M., my reasons for his not attempting it, "That a night march 
is always exceedingly fatiguing and injurious to troops. That my com- 
mand had already marched from 12 to 14 miles that day," &c. 

(P. lie.) 

3. Bullerfield. — My men " ivere very much fatigued. They had 
marched from Kelly's Ford to Bealton, and from there up to Warrenton 
Junction, almost all the way without water, in the dust. It was very 
warm, and it was with great difficulty that we got them along." (P. 186.) 

No portion of this testimony was the President advised of, and yet its 

materiality is most apparent. Why did the Judge Advocate omit it, in 

executing an order, which directed him to report " fully " upon the 

bearing of all the testimony? Why select a part? Can these enquiries 

ly be met satisfactorily ? What fair mind will say they can ? 

The darkness of the night, then, the state of the road, the condition of 
the troops, rendered it, in the opinion of his three Generals, not only inad- 
visable. Inn impossible, to execute literally as to time, the order of the 
2Tt h of August. Did the President, when he approved the sentence, 
know these facts? For the sake of his own character, of his sense of 
justice, his duty to the country, it is hoped, and believed, that he did not. 
Did he know, could he have known, that Porter's decision was based not 
on his own experience merely, but, as proved by Syhes, "upon the 
opinions of the three General officers in his corps next in rank to him- 
self," (p. 17<;,) and that each one of them, in his testimony before the 
Court, maintained the .-ami' opinion. 

Did he know, that all concurred in saying that "nothing whatever" 

would have been gained by a different decision? And, finally, did he 

know, what they all also stated, (as did Pope,) that the "military neces- 

movement to be at one o'clock, A. M., on the 28th, so as to 



be at Bristow Station at daylight, did not appear, on the 28th," when 
Porter's command reached that Point ? (P. 177.) 

Ignorance, however, of these circumstances cannot be used in vindica- 
tion of the Court. How they are to be vindicated, except upon the 
hypothesis of an abtuseness of intellect, the effect of prejudice, no fair 
mind can imagine. 

But in the march, when it was begun, the Judge Advocate says, "there 
was no haste or vigor displayed," and that the mud, spoken of by General 
Griffin, could not have been an obstacle "at such a season." " II was 
(he adds) in summer, and a season of drought, as appears from the 
clouds of dust which are continually brought to our notice by the testi- 
mony," and that "he cannot (therefore) be misled," by the alleged exist- 
ence of mud. 

A few words on these points are all that can be necessary : 

1. The charge of the absence of haste and vigor rests on the evidence 
of De Kay. On his statement that the troops, were marched " at the 
rate at which troops would move if there was no necessity for rapid move- 
ment," and that, in his "judgment," they could "have moved much faster 
than they did in point of fact." 

In the first place, the evidence of this witness, who was on Pope's 
staff, is to be taken with many grains of allowance. He recollects little 
except what was thought to prejudice Porter. He remembers nothing of 
what Porter said to the attending Generals, except that he states Porter 
said : " Gentlemen, there is something for you to sleep upon," a fact posi- 
tively disproved by Butterfield, and not stated by Sykes or Morell. 

2. He said, "he could not recollect precisely'''' whether Porter an- 
nounced his purpose, either to obey the order or not, a fact clearly proved 
by each of the Generals. 

3. That he " was aware of the determination not to start until day- 
light,'''' because he "went to sleep" on hearing so, when the Generals, all 
of them say, at first he resolved on starting at once, and only delayed till 
three through their earnest advice. 

4. He does not say, what Butterfield proved he did say, that he told 
Porter "it would be very difficult in getting back. That he would have 
hard work to find the way." 

But, it is not necessary to rely on these circumstances. As the ''■ 
the asserted want of haste and vigor is positively disproved by each of 
the Generals, and by other officers, a fact also not disclosed to the Presi- 
dent. 



44 

1. Morell answered " Yes" to this question: "After starting at 3 
o'clock, did your own command, and, so far as you know, the rest of the 
corps make the best of their way, and push on as fast as possible 
towards Bristow Station ? (P. 145.) 

2. Sykes. — " I led the advance on that morning, (the 28th,) and I 
continued my march to Bristow Station, with the exception of the usual 
halts which commands always have to allow men to pass to the rear, and 
the one that I spoke of at the Creek, when I said, I found it necessary to 
halt my command fur some time, in order to unite it." (P. 119.) 

3. Locke. — "They (the troops) marched as fast as they could under the 
circumstances," and by the circumstances, he said, he meant "the dark- 
ness of the night, and the obstructions of the road." He also stated that 
the troops " were very much fatigued." (P. 134.) 

How idle to disregard all this concurring proof, and rely not only on 
the unsupported, but the contradicted evidence of De Kay. And how 
unfair to the President, and to the public, (the review was intended for 
both.) and unjust to Porter, not to give the opposing and contradictory 
evidence. 

II. That the mud was no obstacle "to the onward march of soldiers 
determined to do their duty." No evidence was offered to prove that 
there was no mud on any part of the line of march. 

I. The Judge Advocate infers it "from the clouds of dust" continually 
brought to our notice by the evidence. How illogical. What rare 
simplicity. The weather was hot and dry. The parts of the road where 
there was no water, were dusty. There could not, therefore, be mud, 
where there was no dust, but water. Had the exigency of his case 
required it, the acute and learned reviewer would have maintained, that 
as Pennsylvania Avenue is at times excrutiatingly dusty, there cannot 
then be mud in the marshes of the Potomac. 

II. But the fact of there being mud, and that it operated to impede 
the march, was proved expressly by Generals Griffin aud Butterfield. 
They were on the spot, leading the inarch of their respective columns, 
and it is rather more than probable, that they would know better whether 
there was mud in the route, and whether it interposed an obstacle to the 
march, than an official sitting in his study, and evidently bent on showing 
that there was nothing in the way to impede "the onward march of sol- 
diers determined to do their duty." 



45 

1. Griffin.— "I know that the artillery which followed the brigade, 
that is, a carriage or two of the artillery which followed the brigad 
stuck in the mud, or in a little creek, and had trouble in getting out " 
(P. 161.) 

2. Batter field. — In answer to a question by the Judge Advocate, he 
said: "I know that after it had got to lie about daylight, I went oul to 
the head of my column, and I found a difficult place to cross— thai there 
was difficulty in getting the troops across. I could sec that it had been 
dark, and the troops had been impeded, but they began to go on more 
rapidly, as light broke." 

He was then asked again by the Judge Advocate to " state the charac- 
ter of the difficulty — the character of the place — was it mud or water, or 
what was it ?" And he answered : 

"It was mud and water both — one of those streams that we almost 
always have to force troops over. In the day time you could force them 
over very well — but at night, when it cannot be seen, it is a very dij 
thing to get men across such a place." (P. 187.) 

This testimony of Butterfield is not even alluded to in the review. 
Then, unless Griffin and Butterfield swear falsely, (for mistake as to such 
facts was impossible,) notwithstanding the hypothesis of the Judge Ad- 
vocate, resting on the existence of dust on portions of the road, there 
was mud and water in other portions, and to an extent interposing ob- 
stacles "to the onward march of soldiers determined to do their duty." 
But, finally, on this head. Why is it, that Porter, alone of the coi i 
is accused of want of "haste or vigor?" 

As Commander of the entire corps, his duty was but to issue the 
necessary orders to his division Commanders, for the march. And this 
they all say, was done. It was their duty to superintend the execution of 
the orders. They are equally responsible for disregard of duty, as their 
immediate chief. He relied, as he had a right to rely, upon them to 
conduct the march with proper "haste" and "vigor." lie had every 
reason for such reliance. They had been under his command, on many 
battle-fields. He had seen them in the midst of count 1 ever 

foremost in danger, unsurpassed in tfkill, and nobly devoted to duty. "To 
do their duty," he knew them to be "soldiers determined." If there was 
any failure, then, in the speed of the march, it is to be referred to them, 
and not to him." And yet, who has ever called their patriotism, or their 
efforts in regard to it, in question? The Government certainly has not. 
They are now, and have been continuously, from the 27th of August, 
1862, in its service, and on duty. To hold Porter responsible for their 



46 

alleged misconduct, (for which, however, there is not the least ground,) 
and not only not even to censure them, but to keep them in honored com- 
mands, is an unequal measure of justice, that amounts to a gross and pal- 
pal tie wrong. One victim, however, was enough. To have sacrificed to 
the behest of party, or to the exigencies of an ill-planned campaign, and 
of an unfortunately selected Commander, Morell, Griffin and Butterfield, 
would have been too glaringly to have outraged public opinion, and it 
was not done. But the very omission of passing by these officers, and visit- 
ing upon their immediate chief, the sole responsibility for the asserted 
want of haste and vigor in the march of the 28th of August, which, if it 
was true, was their fault, and not his, demonstrates the depth and the 
enormity of the injustice done to Porter. 

Second Specification. — First Charge. 

II. The second specification of the first charge is, Pointer's failure to 
the joint order to himself and McDowell of the 29th August, 18(52. 
That order was as follows : 

"Headquarters Army of Virginia, 

Centreville, August 29th, 1862." 

" Generals McDowell and Porter : 

You will please move forward with your joint command towards Gaines- 
ville. I sent General Porter written orders to that effect, an hour and a 
half ago. Heintzleman, Sigel, and Reno, are moving on the Warrenton 
turnpike, and must now be not far from Gainesville. I desire that as 
soon as communication is established between this force and your own, 
tlic whole command shall halt. It may be necessary to fall back behind 
Bull Run to-night. I presume it will be so on account of our supplies. 

1 have sent no orders of any description to Rjcketts, and none to inter- 
fere in any way with the movement of General McDowell's troops, except 
what I sent by his aid-de-camp last night, which were to hold his position 
on the Warrenton Pike, until the troops from here should fall on the 
enemy's Hank and n 

I do not even know Rickett's position, as T have not been able to find 
out where General McDowell was until a late hour this morning. 

General McDowell will take immediate steps to communicate with 
General Ricketts, and instruct him to join the other division of his corps 

as practicable. If any considerable advantages are to be gained 

by departing from this older, it will not be strictly carried out. One 
thing must lie held in view, that the troops must occupy a position, from 
which they can reach Hull Bun to night, or by morning. The indica- 
tions are that the whole force of the enemy is moving in this direction, at 



47 

apace that will bring them here by tomorrow night, or the n 
My own Headquarters will for the present be with Heintzleman's o 
this place. 

JOHN POPE, 
Major General Comma 

I, The first enquiry on this head is, what, in one particular, was tin- 
meaning of the order ? Was it that each of the two Generals was to acl 
independently of each other, or that, being together when received, and 
being executed, they were to be governed by the sixty-second A.rticl 
War? This, as will be seen, is a material point, and was so conside 
by the Judge Advocate. He endeavours to give it the former inter- 
pretation, and relies for that purpose mainly on Pope's evidence. Pope, 
he says, testified that his " intention " was "that they should acl inde- 
pendently of each other, and each in direct subordination to himself." 
(P. 306.) But even with this assistance, he admits that the point is not 
dear. Anxious as he was to maintain that construction, he could nol 
bring himself to say, in its support, more than that, "under these circum- 
stances, it may well be questioned " whether, under the Article of War 
referred to, "General McDowell could continue the command which he 
had assumed over these joint forces." Here, again, as throughout, con- 
trary to the universal rule, doubt, however reasonable, is to be solved 
to the prejudice of Porter. "Full weight," say.-. Bennet, and all other 
authorities, is to be given "to every argument or presumption in favoi 
of the prisoner.'' (P. 126.) Porter was. by the Court and the Judgi 
Advocate, denied the benefit of this rule. 

In fact, however, there is no room for doubt The construction main- 
tained by the Judge Advocate as probable, is manifestly wrong. 

II. To call to the aid of that construction Pope's oral proof before 
the Court, of his intention, is in violation of the best established ride-' of 
evidence. 

The order must be its own interpreter. To construe written matter 
by evidence aliunde, every professional man know- to be inadmissable. 
Nothing but confusion, mistake and injustice would be the resull of such 
a course. And in this instance, to refer to Pope's evidence, given months 
after the order, not made known to McDowell and Porter when they 
received it, or afterwards, until he gave such evidence, is as absurd as il is 
unjust. How were either of them to know Pope's intention, except as 
the order disclosed it? He was twelve miles away from them. The 
order was received, without any explanation or message from Tope. Bis 
mind, his intent, they could but collect from the order itself; and cer- 
tainly they could not foresee that, months afterwards. Pope would 
seek to give it an intent, not only not consentaneous with, but contra- 



48 

dictory with its terms. Pope is presumed to have known of the sixty- 
ond Article of War. If by that article, McDowell, as "the officer 
highest in rank," would have the right to "command the whole," then, at 
least, in the absence of any direction from himself to the contrary, Pope 
is to be assumed to have so intended. 

The different view taken by the Judge Advocate serves to deprive 
Porter of the defence to this specification, that in what he is charged to 
have done, or to have omitted, in supposed violation of this order, he 
acted under the command of General McDowell, his senior in rank. 

The very fact that such a view is taken by the Judge Advocate, satis- 
factorily shows, that he thought the opposite one would, upon the evi- 
dence, be a full answer to the. specification. He seeks also to maintain 
his interpretation upon the further ground, that the article "excludes the 
idea of the presence of an officer superior in rank to those commanding 
the different corps of which it speaks." Certainly, it does. But was 
Pope present when he gave the order ? when it was received ? or was 
being executed ? The Judge Advocate does not say he was, but does 
say he "was absent but a few miles." How many miles, he does not 
inform the President, or how many miles would, in his opinion, constitute 
absence and not presence. As the fact in this connection was material, 
he should have stated, if he knew, and he ought to have known, the 
evidence being before him, how far off Pope was, that the President 
might judge, as he gave no opinion of his own to guide him, whether 
such distance was absence or not. Pope was at Cenlreville, a distance 
of twelve miles. To say then that he was present would seem to be 
absurd. The Article looks to present and immediate joint duty. 

D was such duty that the order embraced. The two commands 
were to act together. The officers were told to "move forward with 
your joint command towards Gainesville. It contemplated its union 
with tin; forces of Heintzelman, Sigel and Reno, and that that occurring, 
"the whole force should halt." They were also told, "that the troops 
(that is, all of them,) must occupy a position from which they can reach 
Bull Run to-night or by morning." In the forward movement of the two 
corps, who was to command ? Who to give the order to halt ? Who to 
decide upon tin- position to lie held to enable the command to reach Bull 
Run that night or morning? 

The Article contemplates this very sjtate of things, and provides for it. 
"If on marches," or doing "duty together," different corps of the army 
shall happen to join, the officer, highest in rank of the line of the army, 
"shall command the whole, and give orders for what is needful to the 
service." No matter how the junction is brought about, when it exists, 
the Article embraces it, and establishes a positive rule, that "the officer 
highest in rank in the line of the army" is to command the whole, with 
the single exception that it shall be " otherwise specially directed by the 



49 

President of the United States." To hold that, under the circumstances 
of this joint command, what was to be done in executing the joint order, 
was to be done by Pope, who was tvjelve miles distant, upon the theory 
that he was, notwithstanding, to be considered present, every one will see 
is wholly untenable. How was he to judge when to move the command ? 
when to halt, or what position to take with a view to retire to Bull Run 
that night or the next morning ? These two corps were placed by the 
order and the sixty-second Article under the command of McDowell. 
No one but the President had the authority to take the command out of 
the operation of that Article. And even if Pope thought that he had the 
power, he did not attempt to exert it by the joint order, 

II. The specification does not state in what particular the order was 
disobeyed. It only alleges that Porter, "did then and there disobey." 

We are to look, then, to the evidence, and review, for the information. 
The finding of the Court, merely finds disobedience in fact, without stating 
in what it consisted. 

The President therefore had no knowledge upon the point, except as 
he obtained it from the Review. That told him that, " the Court con- 
cluded and justly, that his, (Porter's) falling back under the circum- 
stances, and for the purpose mentioned in his note to Generals McDowell 
and King, was a violation of the joint order to himself and McDowell." 
(P. 308.) 

As this is the only information we have of what was considered by the 
Court disobedience, it would be sufficient to confine these remarks to that 
point. But, as the Judge Advocate has suggested many things, tending 
to disparage Porter in other particulars, these will be first noticed. 

I. It is said, that when the two corps were together, and the front of 
Porter's column, (his corps being' in advance,) "had reached some three 
miles beyond Bethlehem Church," " General McDowell, then rode forward 
to the head of the column of the accused, when an interview and confer- 
ence took place between them. They discussed the joint order, and 
General McDowell determined, for himself, that there were considera- 
ble advantages to be gained by departing from it," and by moving with 
his forces along the Dudley Springs road towards the field of a battle, 
then being fought by the main army of General Pope, at the distance of 
three or four miles. His purpose was to throw himself on the enemy's 
centre, and he wished the accused to attack his right flank. He then 
said to Porter, "you put your forces in here, and I will take mine up the 
Dudley Springs road on the left of troops engaged at that point - 
the enemy." (P. 30V.) 

4 



50 

Prom this statement, the reader would suppose that McDowell eon- 

red himself entitled to direct Porter's movement. The Judge Advo- 
cate should at least be consistent with himself. If upon the theory that 
Pi pe w; s to I"' considered as present, Porter was not under McDowell's 
command, then the latter had no right to direct his movements. Of these 

er had the sole control, subject only to Pope. 
[f they were to "act independently of each other," (and the Judge 
Advocate says they were to do so,) and that such was Pope's "intention," 
then if McDowell's alleged direction to Porter was given authoritatively, 

as but intrusive. If on the contrary, as in this part of his review, the 
Judge Advocate implies, a different opinion of their relation towards 
h other, is the correct one, Porter Was under the command of Mc- 
Dowell, then, it is most important to ascertain what order, if any, was 
given by the latter to Porter. If he was subject to McDowell's command, 
(as it is confidently believed, and as in this part of his argument, is con- 
ceded by the Judge Advocate,) then his duty in the execution of the 
joint order was to act in subordination to that officer. And if in doing so, 

joint order was disobeyed, the offender was McDowell, not Porter. 

re was McDowell, when he gave the order to Porter, and what was 
that order ? 

I. He was present with the joint command, and had the control of it. 
His leaving it afterwards, and going with his own corps to another part 
of the field, in no way impairs the validity or effect of his prior order,. 
Whatever that was, Porter was bound to obey it. 

II. If McDowell gave an order, what was it ? 

The Judge Advocate would have us believe, that it was that Porter 
should attack "the enemy's right flank," — should put his "force in here," 
meaning, in front of the then locality of the two corps. He does not 
intimate even, that a word was uttered by McDowell contrary to this 
alleged order, and yet the proof is clear, (McDowell to the contrary, 

^withstanding) that there was an order, and not only that, but that the 
one alleged was not given at all. 

I. Lieut. Colonel Locke, Chief of Porter's staff, and his assistant 
Adjutant General. He saw McDowell on the 29th, "on the ground 
where we had taken up our position in the direction of Gainesville, 
end near the Manassas Railroad," "where Porter was forming his 
corps in line of battle." "He had made considerable progress in th.3 
disposition of his troops, a battery was in position, and the troops 
were being deployed. Skirmishers were being thrown out in from." 



51 

On seeing it, McDowell said, " Porter, you are out too far already, this 
is no place to fight a battle." (P. 135.) 

If this evidence is to be relied upon, (and this will soon be examined,) 
Porter was preparing for battle. He was not then certainly providing 
for "the personal safety of (himself) and staff," as the reviewer most 
charitably suggests, was his motive subsequently in another asserted move- 
ment on the same day. 

2. Captain G. P. Martin, a Captain in the third Massachusetts bat- 
tery, Commanding "division Artillery of General Morell's division." He 
saw a meeting between McDowell and Porter, about 11 o'clock on 
the morning of the 29th, "on the road leading from Manassas Junc- 
tion to Gainesville," and "at the head of the column," (Porter's.) 
Heard McDowell say to Porter : " Porter, this is no place to 
fight a battle, you are out too far." Colonel Locke, he said was 
present, and within hearing at the time. Porter "had sent out skirmish- 
ers to the front, and the troops were moving, closing up apparently en 
masse, as I supposed, preparing to form a line of battle, which was after- 
wards done. These movements, " were continued. The brigade that 
was leading were being disposed off, on the hill near where the conversa- 
tion referred to, had taken place— one brigade, and one battery moved 
off to the right shortly after, evidently preparing to form on the right of 
the brigade on the hill. I went with the battery that moved to the right 
to see the position. One battery was plac< I where the conversation was 
held, about that time." (P. 144.) 

Both of these witnesses were unimpeaehed by evidence as to character 
or otherwise, and in their cross-examination, the Judge Advocate made 
no attempt to weaken their testimony. Xot a question was propounded, 
suggesting even a possibility that they could be mistaken.. And when 
McDowell was recalled for the purpose in part of rebutting this evidence, 
he was only asked by the Judge Advocate, if lie had or Dot, " recollection 
of having said to Porter," at his interview with him on the 29th, (he had 
admitted the fact of the interview,) whal was sworn to by Locke and 
Martin, and his answer was, "I cannot recollect precisely what occurred, 
or what conversation, and what words p n us at that time. 

^ umot say what language I used, or how it may hive been understood, 
whilst talking on that point," (the joint order.) (Pp. 217. -218.) 

He stated also, that he though! the conversation related chiefly to 
Pone's joint order. It is then, but a failure to remember whether he did 
or not tell Porter what Locke and Martin positively testified. Non. me 
recordn In using this phrase, a classic one, since the trial of England's 
former Queen, it is not intended to intimate, thai it was the purpose of 



52 

HcE 

:s to the 

•hat how.- r, every man of sense, knows, 

£ 1 ti- 
le. If, in this i»- 
■ 
to which | reduced the miuds C nurt 

Tin - LI A, M. 

I. t ring for battle at the point v here McDowell 

his 01 ler, or were bi 
sd in position orpose. 

II. That ho was told by McDov he was not to fight there, the 
place not beii er one for a battle, and that "he was too far ad- 

d " McDowell supposed he was too far forward, that his position 
was an unfit one, and of cours - i, for a conflict, and yet i 

insinuated by the Judge Advocate, that he retreated an hour or two only 
afterwards, on the same day. for the degrading and cowardly purpose of 
securing ■■ the personal safety of (himself) and staff." (P. S08 
Was ever a party dealt with - ly ? Could it have boon thought 

- ble, that a gallant officer, who in the many battles through which ho 
had passed, was always in the front, or where danger was greatest — de- 
voting his energies, and periling his tl honor and existence of 
his country, whilst tlu Ldvocate was safely seated in his office, 
where do danger could come, or if it did, conld readily be escaped from, 
would be arraigned by that officer, before the President and the public, 
as having abandoned his duty, and cravingly tied from the foe for the vile 
and disgraceful purpose of ■•personal safety." Is all generosity gone? 
Is no magnanimity loft? Is all gratitude tied ? It is o\' the many dread- 
ful evils of this war. that suspicion takes the place of confidence, prejudice 
of impartiality, the darkest passions of the highest virtues. Toner a 
ard ! Lot him who charges it. go to the noble troops he has so often 
to battle, and ask of them if the charge is not true. Ho would soon 
be found, if not himself wholly regardless of danger, looking to his "per- 
sonal safety." Go to the officers who have boon with him in battle, and 
r saw his eye dimmed, except when he discovered his comrades wounded 
uiul dying around him, and see with what surprise and scorn the charge 
would bo received. Go to the troops and the officers constituting his 
corps on the 29th, and listen to the contempt with which the imputation 
would be regarded. The enlightened public will never sanction such an 
.. lusation by whom soever made. They are ever grateful to such a 
pnblie servant as they know Porter to have been. Individuals may be 
found wanting iu that virtue. But such a public, never. Ingratitude, 



•crime of deep?r die thai: e in of human ri 

never found in them. 

III. Conceding, however - order did not direct n 
on the enemy at that point, or elf 

■ o such order, or if he did, that t author 

the Judge Ad* a manifest viola 

tion of the d hen 

placed, without reference t cific order or direction, leading or 

directing him to engage the ei I • have done so. (P 

1 [1 would be a conclusive r new that on 

charges only disobedience of the joint order of the 29th. If it was the 
purpose of the Judge Advocate to r . 

as is here stated, fair' . re- \ 

quired that it should have been alleged. "'' ■• a particular offence, 

and on the trial rely upon another and totally diffi ig- 

nant to justice as to every legal principle. How is the accused to pre- 
pare for his defence; to know what w to summon? or what proof 
he is to meet ? It is impossible that the law in this respect can be un- 
known to the Judge Advocate. A long abandoni;. : on, 
which he for years so greatly adorned, may have had its usual result, the 
making him somewhat ~ome branches of the science. But this 
role of pleading, and evidence, is so familiar, and so challenges the as 
of every sensible mind, that he could not have forgotten it. Why theD 
rely on a charge not stated in the specification the 

•lent as one of the reasons for his approving the finding on the 
actual specification ? Can it be accounted for except because he was 
satisfied, or apprehended the Pr -.isfied th: ■■.nee 

evidence ? Did I .me 

upon the Court ? Did the Court adopt i f take it ? If 

both he, and the Court, offended ags 'aw, and committed a i \ 

outrage upon Porter. The same observations are applicable to the fur- 
ther view of the Judge Advocal Porter on the same day 
an "elementary principle," <: that in nee of pi '.raining 
orders, the march shall alw 

That is not the offence specified. Nothing can be clearer than tl 
But, waiving this objection, conclusive as it is, what foundation in fa 
there for either of these cbarg 

II. The ground of the firel 1 to be, that the officer to 

hold his column so, "in the ad - to be r fford mutual 

istance in time of n >ke the 

principle applicable. V. it? The officer in commai, 



54 

the column. If he judges erroneously, it is no offence, provided he does 
bo honestly. Those who know Porter require no proof to convince them 
that, unless prohibited by "restraining- orders," he would ever assist his 
brother soldiers in time of need. Did he believe it was wanted in this in- 
stance ? The columns supposed to have required his aid, were not in his 
sight, but several miles off. Nor could he leave his own command to 
ascertain their condition, or the desire of their immediate officers, or of the 
Commander-in-Chief. McDowell, leaving his column under the same cir- 
cumstances, to consult Pope, the Court in his case adjudged committed a 
clear offence, and only omitted to punish for it from an impression that his 
motives were innocent. Porter remained, as he should, with his troops, and 
sent one of his aids, Lieutenant Weld, to Pope. That officer states, " about 
four o'clock on the afternoon of the 29th," he started on his errand. He 
bore a written and verbal message to Pope from Porter. The latter was 
"to the effect that General Morell would now be strongly engaged ; that 
there was a large force in front of us." The glance that he had of the 
written one showed him, he said, that it was to the same purport, "but 
much more minutely, with details," — what they were, he did not remember. 
He found Pope, " and delivered the messages to him, both written and ver- 
bal," and asked if there was an answer. Pope told him, "tell General 
Porter we are having a hard fight," and said, that "was all he had to 
send to General Porter." The witness wrote this down, and afterwards 
delivered it in person to Porter. He further stated, that on the way to 
Pope he "saw General Hatch," who was in command of King's divi- 
sion, that officer, as Hatch said, being sick, and not present. That he 
gave Hatch both of the messages, as Porter had authorized, and asked 
him for an answer, and was told, "tell General Porter, that we have 
whipped the enemy, and are driving them," but soon added, don't deliver 
that answer, but this, "tell General Porter, we have driven the enemy in 
the woods." (P. 129.) This also was delivered to Porter. With these 
facts in his possession, on what ground could Porter have supposed that 
Pope needed on his battle ground Porter's column ? 

Who was best able to judge ? Pope, who was on the site of the battle, 
and in command of all the forces engaged, or Porter, who was several 
miles distant ? Had Porter not a right to consider that if his assistance 
was needed, a request, or order to that effect, would have been sent by 
Pope, in reply to Ids written and verbal messages by Weld. Pope had 
the right to demand his assistance. But he not only failed to do this, 
but even to intimate that he desired it. If the assistance was needed, 
and not asked, (and it is clear that it was not,) then one of these con- 
clusions follow : 

I. Either Pope designedly failed in his duty, or II, had not the intel- 
ligence to know, (though on the spot,) that Porter's corps was needed. 



55 

But, he is not blamed by the Judge Advocate. On the contrary, ( b 
ever it may excite surprise, or cause a smile with those who re 
the disorganized army that fell back upon the Washington defences, 
its crest fallen chief,) he tells us, "that it cannot be improper to add, what 
the Record will sustain me in saying, that so far as light is shed upon the 
subject by the testimony, the Army of Virginia appears to have nobly 
performed the arduous and perilous work committed to its hands. Its 
campaign was brief, but marked by signal vi'jor and ability, and animated 
by a spirit which, shriking from neither toil nor exposure, nor dun 
bravely struck the enemy whenever and wherever he could be found." 
(P. 316.) The only way to account for so singular an opinion, is by sup- 
posing that the Judge Advocate closed his eyes to all the evidence in the 
Record, excel., that of Pope, Roberts and Smith, (a fault belonging to 
the whole of his review,) and also by supposing, that the universal voice 
of the public upon the campaign, which literally filled the land, 1 < 
found its way within the walls of his office. But it is strange, that w 
he was penning this enlogium and lauding, " the signal vigor and ability 
of Pope," it did not occur to him, that it was possible the people would 
find in the fact, that when the President discovered the Capitol in immi- 
nent peril, he at once relieved the so much lauded chief, and about 
the 2d of September, placed the army under the command of Major Gen- 
eral McClellan, and on the 5th of the same month gave to Porter the 
command of eighteen thousand men to guard the most important portion 
of the intrenchments around the city, and continued him in that posh 
until the 12th, when he ordered him to the command of his former corps, 
to which a new division was attached, in the army, with which McClellan, 
to his great honor and to the incalculable advantage of the country, and the 
safety of the Capitol and the Executive, fought the battles of South Moun- 
tain and Antietam — conclusive evidence that the President did not then 
share in the confidence of the Judge Advocate in Pope, or in the truth of 
his eulogium, or participate in his present detraction of Porter. 

II. But as the joint order, for the reasons already assigned, as long as 
McDowell and Porter were together, placed the command of their anil 
forces in McDowell, his order was conclusive on Porter. To have dis- 
obeyed it would have been a high military offence. Did McDowell give 
an order, and what was it? The facts that he gave one, and what the 
order was, are conclusively proved by the evidence of Locke and Martin, 
before referred to, and which was not at all weakened much less rebutted 
by that of McDowell. 

III. Porter's " falling back," the Judge Advocate says, was the 
ground on which the Court decided that there " was a violation of the 
joint order." (P. 308.) 



56 

I. The only proof urged to sustain the fact that there was a falling back 
Qote (which will be given hereafter,) of Porter to McDowell and 

_, without date, but no doubt written and sent on the 29th, after 
those officers bad left Porter's corps. At this time, Porter wa?, as before 
stated, authorized to judge for himself. That this was his right, Mc- 
Dowell having then separated from him, the Judge Advocate nowhere 
contests. On the coutrary, he admits that McDowell then ceased to have 
any rightful authority over Porter, and that he (Porter) was "left un- 
trammelled " and empowered to decide for himself what was to be done 
under the joint order. (P. 307.) He not only makes this concession, 
but in another part of his review, as has been seen, he goes farther and 
maintains, that even McDowell present, Porter had the right, under the 
order, to act independently of him. In this latter opinion he is certainly 
mistaken, but in the other, clearly right. The order told Porter that "it 
ssary to fall back behind Bull Run at Centreville to-night,'* 
and that, "one thing must be held in view, that the troops must occupy 
a position from which they can reach Bull Run to-night, or by morning,"' 
" and that if any considerable advantages are to be gained by departing 
from this order, it will not be strictly carried out." The power, therefore, 
to Judge whether departing from the order would produce " any con- 
siderable advantages " was given to Porter exclusively. He had the right 
to decide on that as fully as Pope himself would have had if personally 
present. Error in judging of it is no offence if committed honestly. The 
power, however, was made subject to this positive limitation, that it was 
not to be exercised so as to place his troops in a position from which they 

ht not be able to "reach Bull Run that night or by morning." Every 
thing to be done was to be in subordination to that object. If to march 
different direction, or to attack the enemy, or to do anything else, 
would probably hazard that end, it was not to be done. And who was 
to decide this ? Porter. Had he acted without regard to that primary 
purpose, and by doing so had frustrated it, he would have violated the 
•. and been justly liable to punishment. Now, what evidence is there 
that in anything he did, after McDowell left, him, Porter did not decide 
honestly ? His Generals and several of his other officers were examined, 
and they exculpated him in this, as indeed they did in regard to all the 
charges. Nor, as to this, did the Judge Advocate attempt to prove the 
contrary by any one of them. 

If, therefore. Porter hud in fact fallen "back/Mie was empowered to 

(i if he really judged it expedient, looking to the positive injunction, 
as to Bull Run, or to ''advantages 7 ' that he thought would result from 
it. This proposition, however, is not necessary to his vindication. For 

■ is not only no proof that he did fall back, but positive proof 

he did not. "Falling back," as the Judge Advocate uses the term,. 

DM his troops fall back or retreat on the 29th. There 



57 

is not a scinctilla of evidence of it; nor does the Judge Advocate offer 
any evidence of any fact that even tends to establish it. He not onlj 
substitutes surmise for proof, but, in favor of surmise, he rejects positive 
and uncontradicted proof. 

The proof is this : 

1. Morell. — He stated that he received an order from Porter, written 
in pencil, a little before sun set on that evening, and soon after, through 
Colonel Locke, a verbal message to the same effect, directing him "to 
make dispositions to attack the enemy," and that he did so. That the 
order was afterwards countermanded, because of the lateness of the hour, 
as suggested by him, and he added, "I was directed to remain where I 
was during the night." That he made his dispositions accordingly, des- 
cribing them, and said, "in that way we passed the night." (Pp. 146, 
147.) 

The written order was produced, on the cross-examination of the Judge 
Advocate, and was as follows : 

" General Morell, — I wish you to push up two regiments, supported by 
two others, preceded by skirmishers ; the regiments at intervals of two 
hundred yards, and attack the party with a section of a battery, opposed 
to you. The battle works well on our right, and the enemy are said to 
be retiring up the pike. Give the enemy a good shelling when our troops 
advance. 

"F. J. PORTER, 

Major General Comm." 

What conclusive proof this, that Porter, on that day, was thinking of 
"the personal safety of (himself) aud staff?" It is commended as such 
to the special meditation of the charitable Judge Advocate. The wit, 
further stated: "I received from General Porter an order to remain all 
night where I was," in line of battle, immediately in front of the enei 
and did so. 

2. Butterfield, Sykes, Locke and B. F. Smith, proved that the 
troops remained in their position in front of the enemy, all the night of 
the 2Wi. Locke, said that they continued there "until the next morn- 
ing at daylight," and to the question, " was there any retreat at all, an- 
swered no." (P. 195.) Smith, a witness of the Governnn lined 
by the Judge Advocate, and whose evidence he fully relied upon for an- 
other purpose, was asked by him. "Was there or not any such display 
of the enemy's forces as to make it necessary, in your judgment, to retr 
before them ? And answered, " I had no means of knowing. When we 
moved back from that position I supposed it was for some proper cai 



58 

but I did not understand at all what the cause was. / did not receive 
any impression that we were retreating from the enemy. I supposed 
were making a reconnoissance to feel the enemy in that direc- 
tion, and, having found him, that we had moved back for some other 
purpose; and, not knowing- about the orders to the general, I remained 
under that impression. (P. 113) Is it not then passing strange, that 

clear proof, the Court should, as the Judge Advocate says they 

did, "and justly," have found that Porter did fall back, did retreat on 

evening, and in that way, (the only one suggested) violated the 

joint order? It can but be accounted for as other gross errors can only 

mining the existence from some cause aliunde of judicial, and 
official blindness. The only ground relied upon by the Judge Advocate, 
is the following note, heretofore referred to, from Porter to McDowell 
and King. 

" Generals McDowell and King : I found it impossible to communi- 
cate by crossing the roads to Groveton. The enemy are in strong force 
on this road, and as they appear to have driven our forces back, the firing 
of the enemy having advanced and ours retired, I have determined to 
withdraw to Manassas. I have attempted to communicate with McDowell 
and Sigcl, but my messengers have run into the enemy. They have 
gathered artillery and cavalry and infantry, and the advancing masses of 
dust show the enemy coming in force. I am now going to the head of 
column to see what is passing and how affairs are going. Had you 
not better send your train back ? I will communicate with you. 

"F. J. PORTER, 

Major General." 

Waiving for the present, what however is most obvious, that if Porter 
had withdrawn to Manassas, (his purpose when this note was written,) 
the movement would have been within the discretion vested in him by the 
joint order, yet as the evidence is clear, that he did not so withdraw, but 
on the contrary, continued wherehe was in front of the enemy, when the 
note was written, and until the morning to the 30th, and then only marched 
under a positive order from Pope, he could have been found guilty of 
falling back or retreating upon the 29th, only upon the hypothesis, that an 
unexecuted purpose, is the exact equivalent of an executed one. In 
the view of ordinary minds, to do is one thing, and to intend to do, an- 
other — but witli this Court and Judge Advocate, they are in fact and 
in law, identical, and Porter has been adjudged guilty of disobedience, 
not because he did disobey, but because he, for a moment, contemplated 
i obedience. There is no better way of meeting such reasoning than to 
state it. Like all palpable follies it answers itself. 



59 

The Judge Advocate asserts, however, that the purpose to " retreat," 
"most energetically, " as he says announced in the note, "was promptly 
carried out substantially, if not to the letter, because at between five and 
six o'clock, the accused was found at or near Bethlehem Church, sur- 
rounded by his troops, whose arms were stacked." (P. 308.) Tie omits 
however, to inform the President, or even to allude to it, that the greater 
part of his troops, Morell's division, as proved by Morel] himself, remained 
during the night — and by Porter's order, where McDowell left them, in 
the immediate front of the enemy, and in line of battle prepared cither 
to repel or attack as the occurences of the night might require. That 
all the troops where not there, upon the point in question, proves 
nothing. The Judge Advocate would seem to think that there was a 
retreat, if the whole corps was not retained at the spot — placed in solid 
column, standing erect, and with arms at the shoulder. But this is mere 
fancy. What witness proved a retreat in a military sense ? Not one, 
whilst Morell, Locke and B. F. Smith, testified that there was no retreat, 
in fact, and no order given for one. Here again hypothesis is made to do 
more than take the place of proof — it is used>to supplant it. The Judge 
Advocate, conscious that the order from McDowell to Porter of the 20th, 
which Colonel Locke positively swears he received and delivered that after- 
noon, would be a full justification for Porter's noc attacking the enemy, as- 
sails the witness. This he does, not by calling witnesses to impeach his 
character for veracity, or in any other respect, but by proving I, by Mc- 
Dowell, that he did not recollect giving the order, II, by King, that he was 
uot with McDowell (as Locke had said he was,) when McDowell as stated 
by Locke, gave the order. The reviewer says, that McDowell "declared 
that none such was sent by him." This is not so. He made no such 
statement — on the contrary he studiously avoided doing so. He but pro- 
fessed not to recollect having given it. King's evidence was to the same 
effect. He was only asked by the Judge Advocate if he remembered 
being with McDowell about the time when Locke testified he received 
the order, and said that he did not. And to another question he an- 
swered, that he did not remember hearing McDowell give any Mich order 
that day. In his case then as in McDowell's, there existed but a want 
of recollection. Is this to destroy the evidence of a witness not otherwise 
impeached, who swears that the order was given ? As far as there 
is proof, and as those who are acquianted with the parties, know to be 
the fact, Locke's character for veracity is as perfect as that of McDowi 
or King's. Why then is his truth assailed, and there being mistaken 
even, treated as impossible. King admitted that he was sick on that day, 
and although he did not state what his desease was, yet, as he said, he 
was too sick to take part in the battle of the succeeding day, and was 
forced to leave his division to be led by Hatch, as his loyalty and gal- 
lantry are beyond all question, his sickness must have been severe. Cer- 



60 

tain deseases we all know, (and King's may have been of that kind,) 
produce listlessnesa and impair memory. And yet on this negative, and 
wholly unreliable evidence, it is maintained by the Judge Advocate, that 
no such order was given, and that Locke, the equal in virtue of McDowell 
and King, willfully swore false. 

Mistake as to the fact to which he testified was impossible. If the 
order was not delivered by McDowell to Locke, then the latter knew it, 
and his testimony was designedly untrue. But, whether the order was 
in fact sent by McDowell, Locke positively swears he delivered it to 
Porter as coming from McDowell. No one contradicts this either posi- 
tively or negatively. To receive it as true, therefore, would seem to be 
unavoidable, but it is not so with the Judge Advocate. He assumes 
without charging it designed falsehood on the part of Locke in his state- 
ment that the order was sent by McDowell, and then maintains that the 
other fact proved by him, the delivery of such an order to Porter, is to be 
rejected as untrue on the authority of the maxim, which according to his 
reading is "falsum inuno, falsum in omnibus," (it should be falsus in 
uno, falsusin omnibus, 1 '') Desirous, however, as he evidently was to im- 
peach the credibility of Locke, he could not bring himself to charge him with 
willful falsehood. And, yet the maxim has no application to any other. 
And it applies there, because in such a case, the very ground on which 
credit is given to human testimony fails. You cannot be certain in such a 
case whether there is truth in any part of the witness' evidence. "Having 
(says the Judge Advocate,) been discredited as laboring under a' complete 
misapprehension in regard to the first, (the receiving the order from 
McDowell,) this discredit necessarily attaches to the second, (the delivery 
of such an order to Porter,) and under the maxim quoted, his entire 
statement falls to the ground." (P. 314.) 

^S\ istake — "misapprehension," as to one fact, the Judge Advocate as- 
serts—taints the whole evidence of the witness, and demands its rejection. 
It establishes therefore in the sense of the maxim, according to his under- 
standing of it, falsehood. If this was its true construction, in how many 
cases could testimony be of any avail. What witness but proves at times 
to be mistaken, or to misapprehend some of the facts to which he testifies ? 
Human memory often honestly fails — is human testimony on that ac- 
count to be rejected ? But if misapprehension as to a fact legally and 
morally discredits every other portion of the evidence of a witness, for the 
same reason the misapprehension of the meaning of a legal maxim, 
would deny to him who entertains it any legal knowledge. The mis- 
apprehension of the meaning of the maxim quoted by the Judge Advo- 
cate, every student will see is clear beyond all doubt. Its meaning is 
stated with his accustomed perspicuity by Mr. Justice Story, in the case 
of th : Santissima, 7 Wheat, 338. "Where a party speaks to a fact in re- 
spect to which he cannot be presumed liable to mistake, as in relation to 



61 

the country of his birth, or his being in a vessel on a particular voyage, 
or living in a particular place, it is extremely difficult to exempt him from 
the charge of deliberate falsehood; and Courts of Justice, under such 
circumstances are bound upon principles of law and morality, and Jus- 
tice, to apply the maxim falsus in uno, falsus in omi nil bus. What ground 
of judicial belief can there be left, when ihe party has shown such gross 
insensibility to the difference between right and wrong, between truth 
and falsehood." But yet how unfair it would be to deny to the Judge 
Advocate even very distinguished legal attainments. He so wished to 
get rid of the fact fatal to his immediate purpose, the approval of the 
sentence against Porter, that he was oblivious for a moment of the true 
sense of the maxim or of the moral principle on which it rests. 

It is unaccountable also why the Judge Advocate did not call the Pre- 
sident's attention to the positive statement by Porter in his defence, that 
Locke delivered the order to him. Did he doubt Porter's truth ? Did 
he think his statement false ? He could not. He must have known, or 
could have informed himself, that in the estimation of all who knew them, 
Porter as a gentleman, and man of honor, is in every respect the peer of 
McDowell and King, and himself. It is no answer to this suggestion, 
that Porter's defence is not evidence. It is not legally, but it is morally. 
Locke being confirmed by Porter, whose veracity no gentleman will 
•question, should have saved Locke from the charge of perjury, so reck- 
lessly made by the Judge Advocate. 

But the evidence of Locke, after McDowell and King were examined, is 
so clear that it is impossible not to credit it. After stating why he con- 
sidered McDowell's message to Porter singular and important, he said 
that on that account "it impressed me very strongly all the way up to 
the time that I gave it to General Porter." That its character was such 
that he thought no one should hear it but Porter, and that he therefore 
"delivered it to him in an under tone," and that he had " never forgotten 
the messages or the incidents connected therewith." He also described 
minutely where he found McDowell and King. At the time he knew the 
former well, but not the latter. And in conclusion was asked this <\ 
tion: "are you entirely positive, as much as you can be of any fact, thai 
you did deliver to General Porter, on the afternoon of the 29th of August, 
words which purported to be a message from General McDowell, to the 
effect that General King was to be taken away, and that he. Porter, was 
to remain where he was," and answered, " I am positively certain of 
it." (Pp. 223, 224.) 

It is not thought that there was a person present when this evidence 
was given, not excepting the Judge Advocate, who did not fully believe 
it. It was impossible to do otherwise. The manner of the witness, his 
evident intelligence, the reason he assigned for his conviction, all united 
to challenge absolute confidence in his truthfulness and accuracy. To dis- 



62 

credit him as to the fact of delivering the message to Porter, on the 
authority of the legal maxim quoted by the Judge Advocate, is as cruel 
as it is legally absurd. With as much, indeed greater propriety, could 
the maxim be used to destroy the whole evidence of McDowell and King. 
The one is proved by Locke to have given the order, the other to have 
heard it given. No fair legal mind can doubt this. They say, they do 
not recollect the facts. The Judge Advocate maintains "that, under the 
circumstances, this is in effect the same as positively swearing that the 
facts did not occur." 

They then are found to have labored "under a complete misapprehen- 
sion in regard to" them, and, being to that extent "discredited," the dis- 
credit necessarily attaches to " all the evidence," and under the maxim, 
"falsum in uno, falsum in omnibus," to use the Judge Advocate's 
Latin, the entire evidence "falls to the ground." That an accusation of 
falsehood against these officers, on 'that ground, would be most unjust 
and disreputable to him who should make it, all will agree, and none, 
it is supposed, more decidedly than the Judge Advocate. And yet such 
an imputation is cast by him on Locke, on that very ground and no 
other. The topic is too unpleasant to be further considered. But 
finally, on this specification, how the Court could find it against Porter is 
incredible. It averred only disobedience of Pope's joint order. 

Whether that existed or not was best- known to Pope. Porter's con- 
duct was all before him. He was informed of everything that he had 
done under the joint order. And yet with this information, in no part of 
his evidence did lie state or intimate that the order had not been obeyed. 
All that he said on the subject, or that the Judge Advocate could induce 
him to say, was not that that order was not obeyed, but the subsequent 
one of 4.30 of that day. At the time this last order was received, the 
proof is clear and uncontradicted, that Porter was doing everything re- 
quired by the joint one. 

Neither Pope nor any other witness testified to the contrary. And 
yet the Court found the specification true. Such a finding under all the 
circumstances can serve but to disparage their intelligence in the estima- 
tion of the public. 

Third Specification. — First Charge. 

Disobedience of the 4.30 order of the 29th of August. The order was 
as follows : 

Headquarters in the Field, 

August 29, 1862, 4.30 p. m. 

Major General Porter: Your line of march brings you on the 
enemy'a right flank, I desire you to push forward into action at once on 



the enemy's Sank, and, if possible, on hi* rear, keeping your right in com- 
munication with General Reynolds. The enemy is massed in t ; 
in fro n of us, but can be shelled out as soon as you engage their flank. 
Keep heavy reserves and use your batteries — keeping well closed to ; 
right all the time. In case you are obliged to fall hack, do so to your 
right and rear, so as to keep you in close communication with the t 
wing. 

JOHN POPE, 

Major General commanding. 

I. It will be seen that this order assumes that Porter's line of march 
uuder the joint one, would briug him "on the enemy's right flank.'* 

It directs him therefore, when he gets on that flank to attack it "at 
once," and if possible the enemy's "rear." To do this last, the flank was 
necessarily to be first turned. So that the order with reference to both 
the flank and rear attacks, was intended to depend on the contingency of 
Porter's march under the previous order, bringing him "on the enemy's 
right flank." As this, however, necessarily involved the line of the enemy's 
march as well as that of Porter's, and neither he nor Pope could control 
the former, Pope could not have been certain when he issued the 4.30 
order, that Porter would be brought by the route he was pursuing under 
the joint order on the euemy's right flank. Pope therefore could nut ha \ e 
designed (the words indeed of the 4.30 order, negative such a design,) 
that Porter was to attack, unless his march brought him on that flank of 
the enemy. If it should bring him on the enemy's ieft or centre, then the 
order from necessity became inoperative. 

II. Where then, pursuing as it is admitted he did, the route prescribed 
by the joint order, was Porter's command when he received that of 4.3o '( 
The proof is all one way. He was not on the enemy's right flank, but in 
his immediate front, and where he was in full force. Not only then was 
the order inoperative, but to have attempted in that position of his troops 
to have marched them towards the euemy's right flank with a view to 
attack that, and if possible, his rear would nut only have failed, but almost 
certainly have been followed by serious, if not fatal consequences to his 
command. What was the fact? Was the enemy in his front, aud in 
force, when he received the 4.30 order? 

I. At what hour did he receive it ? 

The Judge Advocate on this, as well as on every other point of doubt, 
decides so as to prejudice Porter. The rule is otherwise in every 
system of civilized jurisprudence, and this is believed to be the first case 
in winch it hus been uniformly departed from. 



64 

Facts have not only been disregarded, inferences, the wildest and the 
most uncharitable, indulged in, but the best established legal principles, 
without even a sophistical reason to excuse it, totally repudiated. But 
when did Porter in fact receive the order ? The Judge Advocate admits 
that in regard to this, " there is a decided conflict in the testimony." He 
seems rather inclined to conclude for himself, that it was received about 
5^ o'clock. And he suggests that "it maybe that after carefully con- 
sidering all the circumstances, the Court felt that the explicit and intelli- 
gent statements of Captain Pope, and his orderly, fortified by the cor- 
roborative evidence of Generals Pope, McDowell and Roberts, were not 
overcome by the opinions of the five officers examined on the part of 
Porter. (P. 309.) 

But what is the evidence. 

1. Captain Pope of General Pope's staff. — He says that he supposes 
that the distance between Pope and Porter when he got from the former, 
the 4.30 order was " three miles," and swears that it was in Porter's hands 
"by five o'clock." On cross-examination, he admitted that he fixed the 
hour when it was handed to him, by Pope, from the time stated on the 
face of the order. He did not profess other knowledge of it. He de- 
scribed the road he took to get to Porter, and said that he returned by 
the same road. (P. 57.) 

2. Charles Duffer, the orderly He fixed the distance between the 

two Generals, not at three, but at " about five miles, as near as he could 
judge from travelling the road." This is the distance that the Judge 
Advocate adopts, discarding in that respect, what he calls " the explicit 
and intelligent statement of Captain Pope." He says that Pope "rode 
as fast as his horse could carry him, and had but about five miles to 
travel, and yet according to the theory of the defence, that he did not 
arrive until sunset, or half-past six, he was two hours on the way," and 
then asks with an air of triumphant logical confidence, " is it credible that 
a staff officer bearing an important order in the midst of a fiercely con- 
tested battle, would have travelled at this rate, and this too when he was 
conducted by an orderly acquianted with the road, and encountered no 
obstacle. Is it not much more probable that but a single hour was occu- 
pied, and that in point of fact, he arrived at half-past five?" (P. 309.) 
He thus rejects as to the time of arrival, as he had done as to distance, 
Pope's evidence, and adopts that of the orderly, and yet tells us, that the 
statements of both, though materially conflicting, were adopted by the 
Court as being "explicit and intelligent." He also says that these state- 
ments were " fortified by the corroborative evidence of Generals Pope, 
McDowell and Roberts." How this could be, when the statements were 



65 

contradictory of each other, it is not very easy to comprehend. But let 
that pass. What is the supposed corroborative evidence ? 

1. General Pope. — " I know that an Aid-de-Camp, riding rapidly, 
could go from the field of battle to Manassas Junction or to any point 
west of Manassas Junction within an hour by going at speed. 11 

2. Roberts, the disinterested prosecutor of Porter, — he says that he 
was present when the order was issued, and gives it as his opinion that it 
should have been delivered "in half an hour or less as orders are generally 
delivered on such occasions." 

3. McDowell. — He agreed with young Pope as to the time and place 
when he says he saw the witness. Neither of these officers even profess 
to know when the order in fact was delivered to Porter, nor at what rate 
of speed the messenger travelled, nor the character of the road he passed 
over ; and yet their opinions are gravely relied upon as confirming the 
statements of the messenger and his orderly, although they vitally con- 
flicted with each other. And their statements and their supposed corrobo- 
ration are held sufficient wholly to rebut the positive proof of five wit- 
nesses of admitted intelligence and unquestioned integrity, who were pre- 
sent when the order was delivered, and concurred as to the time. 

That this would be manifestly unreasonable if the evidence of the two 
was the same, and if neither was contradicted in any material fact, every 
impartial mind will agree. But in this instance it is the more obviously 
unreasonable since Pope is contradicted as to other material facts than 
the hour at which he says he delivered the order, and II, Duffer, the orderly, 
disproves the facts on which Pope and Roberts, and the Judge Advocate, 
base their opinions. Captain Pope stated first, that after giving the 
order to Porter he returned by the same road by which he had arrived, 
second, that no one pointed out to him the road on his return, except his 
orderly. 

In both these particulars he is expressly contradicted. 

1. By Lieutenant Weld. — In his evidence in chief he says, that he car- 
ried, on the afternoon of the 29th, an order from Porter to General Pope, 
and adds, I " got back after sundown, — I think it was about a quarter 
to seven o'clock when I got back, as near as I can recollect." That Gene- 
ral Pope's messenger to Porter (admitted to be Captain Pope) ''came 
afterwards.' 1 "I was told to show this messenger the direct road back 
to General Pope. I did show it to him, and described it, and even drew 
on a piece of paper the road I had taken, which I afterwards found out 
was not the direct "road ; there was a little variation in it. He could not 
Bee the road ; he did not seem to understand where the road was, where 
5 



66 

it crossed the rail road. Some one then told me that I bad better go and 
show him where the road was, and I went up to the rail road with him, 
and pointed out the road that I had taken." "He started on it," 
(P. 130.) 

2. Lieutenant George T. Ingham, Aid de Camp to General Sykes. 
Was present, he said, when the order was delivered to Porter, and knew 
Pope, the messenger: "it was after sunset." That Pope did not re- 
main "there more than twenty or twenty-five minutes at the outside." 
That after he had left, the witness was sent by Porter to recall him. " I 
rode on pretty rapidly, and I found Captain Pope had got between a 
quarter and a half mile." There were several officers on the road, and 1 
had to ride up close to Captain Pope to see who he was, it was so dark at 
that time." He further stated that Pope, on starting to return, did not 
take "the Dudley Springs Road, the road he finally took," but "was bear- 
ing oif down the rail road, towards Manassas Junction, and that he then 
told him to take the left hand road, and that then Lieutenant Weld (the 
former witness) went down to the road with Pope to show him which 
road to take." (P. 199.) It will be remembered that Pope had sworn, 
that he had returned by the same road that he had come, and that no one 
had pointed out to him any other. 

3. Major General Sykes.— 'He was present when Captain Pope 
delivered the order to Porter. It was " as near sunset as I can remem- 
ber ; certainly, within a little before sunset, or after sunset. " (P. 171.) 

4. Locke. — He witnessed the delivery, and said it was "between 
sundown and dusk." (P. 136) 

5. Montieth — AVas present, knew Pope, and says he delivered the 
order about "sundown." (P. 127.) 

All this evidence, however, is rejected by the Judge Advocate, and, as 
he tells us, by the Court, although the witnesses were with Porter whtjm 
the order was delivered, saw it delivered, and concurred in stating that it 
was about sundown. Their statements are at least equally "explicit and 
intelligent" as Pope's and his orderly's, but they are passed over, and 
theirs adopted. 

II. Nor does the corroborative evidence relied upon in support of the 
latter amount to anything. It consists of mere opinion, whilst the re- 
jected evidence was positive statement of facts, made on personal know- 
When the order could have been delivered, in the judgment of 
1 lis Pope and Roberts, and how long it would take a messenger to 



67 

go from the point where lie saw McDowell to Porter's tent, can be but 
mere opinion. General Pope says an hour. Roberts says a half hour, 
in no exigency does he fail, the Judge Advocate. But to carry the mes- 
sage within either an hour or half hour they unite in saying that speed 
was necessary. Pope says it could be done within the time he named, 
"by going at speed," — Roberts, in his "half hour or less, if carried "as 
orders are generally carried on such occasions." Whether it was in fact 
carried "with speed," or as is "generally" done, neither ventures to say. 
The Judge Advocate presumes "speed" from the character of the mes- 
sage. He cannot believe it "credible that a staff officer "-could be more 
than an hour in performing such a duty. In his view it is nothing that 
five intelligent and honorable witnesses swear positively to a later delivery. 
He, and, as he says, the Court, adopts the statements of Pope and his 
orderly, not only not corroborated in any manner, but expressly contradicted 
in the very material fact of the roads travelled coming or returning. The 
reasoning of the Judge Advocate is that the messenger did what he pro- 
fesses to have done, because he should have done it 

He also maintains in the support of his hypothesis, that Pope " rode 
as fast as his horse could carry him." How fast that was depended 
on the character of his horse and of his orderly's, and the nature of 
the road. To suppose all horses go at the same pace, and that their 
speed is irrespective of the nature of the road, is not exactly logical, if 
experience is to be considered. And in this case, too, to conclude that 
actual speed was had in the sense in which the term is used by Generals 
Pope and Roberts, and the Judge Advocate, is to disregard the evid- 
ence of the orderly. It is apparent that the Court, who alone examined 
this witness, (he was produced by the Government, after Porter had 
"rested his case,") would like to have had him prove that great speed 
was used in the transmission of the order, but in this they failed. He 
said "sometimes we were on a trot, sometimes on a walk, and sometimes 
on a canter, going about as fast as we thought our horses could travel. 
(P. 208.) He was then asked, "how much of the way did you gallop?" 
And answered, "that is more than I can tell you. We went as fast as 
we could from the nature of the road, and as we thought our horses could 
travel." He was further asked, "do you remember whether, you trotted 
or walked, or galloped the most of the way," and replied " we had to go 
a good deal of the way quite slow, on account of the road bt g eery 
\>n-/. rough in places." The Court unwilling to abandon their purpose, 
asked this additional question, "did you gallon any at ail?" And were 
answered, "yes sir, we did." 1 recollect galloping some, in other places 
we had to go quite slow. (Pp. ?v'J, 210.) 

The speed, therefore, required, in the judgment of Generals Pope and 
Roberts, for the delivery of the order by live, or live and a half o'clock, 
was not used, unless to travel "a good deal of the way quite slow," as 



68 

proved by the orderly, and not disproved by young Pope, is to go with 
speed. It is not only true, therefore, that the preponderance of evidence 
8ho\vs that the time of the delivery of the order was about sunset, but 
that there is not any reliable evidence to the contrary. Even however, 
if the first part of the remark alone was correct, the Court should have 
found the fact, that the delivery was at that time. They had neither the 
legal nor moral right to find it otherwise. Where witnesses are equally 
intelligent and fair in character, the testimony of the greatest number is 
to prevail. The probabilities of mistake, (designed mistake in such case 
being impossible,) are less likely with many than a few. The Court, con- 
sequently, in pursuing the course attributed to them by the Judge Advo- 
cate, violated both legal and moral principle. In addition, however, to 
the distinct proof of the five witnesses, which was made to yield to that 
of the two, though one of the two was positively contradicted, and the 
evidence of the other but served to confirm that of the five, there was 
before the Court in regard of the transmission of other orders in which 
no error was intimated, evidence that strongly confirmed that of the five. 
It is this : 

The order of 3 A. M. of the 29th was not delivered until 6 A.M., 
3 hours, though the distance was but Jive miles. That of 8.30 P. M. 
the same day, not until 3 A. M. of the 30th, 6^ hours — distance four 
miles. And another of the 29th of great importance, (p. 28,) was three 
hours in its delivery, and one of 8.50 P. M. of the same day, (p. 7,) was 
6 40 A. M. 

Neither of the officers who bore those several orders, were reprimanded 
by Pope for delay. Nor could they have been, justly. The roads were 
very bad, and comparatively unknown, and the horses much broken down 
by prior hard work. Speed, of course, was impossible. It cannot be 
necessary to pursue the inquiry further. 

The order, then, having been received about sun down, or as General 
Bykes says, " certainly within a little before sunset, or about sunset," 

I. Was it obeyed ? And 

II. If not, why not ? 

The proof is distinct, that the moment it was received, Porter sent 
an order to Morell, who was in the advance, to attack the enemy. 

1. Locke says, Porter handed me the order, and "very soon after- 
wards ordered me to ride up to General Morell, and direct him to move 
forward and attack the enemy immediately, and to say, that he would 
be up himself right after me." (P. 136.) 



2. Morell says, that soon after sunset, Locke "came to me with an 
order from General Porter to make the attack, (lie had been preparing 
for one under a prior order.") " I told him, (and I think in my message 
to General Porter, I spoke of the lateness of the day,) that we could not 
do it before dark." (P. 147.) This order was afterwards, and in the 
judgment of Morell, properly countermanded. He thought that -the day 
was too far advanced, and the enemy too well and strongly posted in the 
front, and in too great force to justify the attempt. In this opinion all 
the officers in the command concurred. Colonel Marshall, as will be seen 
presently, most decidedly. 

The Judge Advocate states, that "by the inaction" of Porter's com- 
mand, and by its "falling back," (a charge before reputed,) "the enemy 
had been so far encouraged in their advance, that at this hour, the front 
of (Porter's) column was not separated from the advance of the rebels by 
more than a mile, or a mile and a half," and that " little time therefore 
was required to make the attack." He fails, however, to inform the Pre- 
sident, what is evidently true, that the joint order of the 29th from Pope, 
was designed to prevent the junction of Longstreet's corps, supposed to 
be 24,000, and Jackson's 25,000. That it was for that purpose, that 
Pope, by that order, united the commands of McDowell and Porter. 
Before McDowell separated from Porter, he had read General Buford'a 
note to General Ricketts, as appears by his evidence. (P. 83.) That 
note was dated at 9.30 A. M. on the 29th, and stated that "seventeen 
regiments, one battery, five hundred cavalry, passed through Gainesville 
three quarters of an hour ago, on the Centreville road. I think this 
division should join our forces now engaged at once. Please forward 
this." (P. 84.) He also said the regiments averaged 800 men. Buford, 
at the time he sent this note, was at Groveton, about four miles from 
Gainesville. The proof is most conclusive that it was Longstreet's 
corps that Buford referred to, and that it was that corps which was 
in the immediate front of Porter. If it was, as is supposed, the pur- 
pose of the joint order that an attack should be made to prevent the 
junction of Longstreet and Jackson, by the blended commands of Mc- 
Dowell and Porter, it should have been made at that time. Instead 
of this, McDowell, who being the senior in rank, had the control of the 
whole force, retired with his own corps, taking with him a division of 
Porter's (King's,) and repaired to a distant point, which he was several 
hours in reaching, and where he was beyond a supporting distance from 
Porter. This is alluded to under the present head, to confirm the state- 
ment before made, that prior to his withdrawing and reducing by more 
than one-half, the force which Pope had assigned for the attack, and 
leaving Porter with an enemy over double his own force in front, he never 
gave Porter an order to make the attack. This conclusion is necessary 



70 

to exempt McDowell from the imputation of reckless folly, gross military 
e, and a disregard of what he must have known was the design 
of tbe co nmander-in-chief. It was in this condition of his force, that 
Porter received the order of 4.30. And as already appears, he gave 
orders, without the least delay, to make the attack, and abandoned the 
purpose afterwards, because of the approach of night, which made it, in 
the judgment of Morell, as well as in his own, impossible to make an 
effective one. It is asserted by the Judge Advocate, that there was not 
an "earnest or vigorous effort on the part of (Porter) to obey the order." 
Morell says, as lias been already seen, that the moment he received Por- 
ter's order through Locke, he proceeded to place "the men in position to 
make the attack." And Locke says, that the moment Porter received 
the order, he carried one from Porter to Morell to attack, " at once." 
The Judge Advocate assumes that there was but a small force in Porter's 
front, and rests for his assumption, principally upon the testimony of 
General Roberts. It is sufficient to say, in relation to his evidence, and 
to show how totally unworthy of consideration it is in this particular, that 
he does not pretend to have seen Porter's position on that day, later than 
"about one o'clock." He could not therefore have seen the position, or 
had any information of the strength of the enemy in Porter's front, later 
than that hour. Nor does he pretend to have been nearer to it, at any 
time of the day, than " a mile and a half." He says, too, " I could not see 
his command, there were woods intervening," nor could I "see his im- 
mediate front," (P. 215.) And yet, although it was literally impossible 
that he could have any information to justify it, he gives it as his opinion 
that there was "only a cavalry force with some light artillery," in Porter's 
front. And yet, more strange is it, that the Judge Advocate adopts this 
opinion in preference to the testimony of Major Hyland, attached to 
Colonel Marshall's regiment of skirmishers, and who was eight hundred 
or a thousand yards in advance of Morell, and near the enemy, of Lieut. 
Stevenson, of Colonel Marshall, Morell, and of every other officer ex- 
amined, who was with Morell's command on that evening. Under the 
circumstances, his criticism upon the testimony of Stevenson, that "he 
was a young man with limited experience," is amusing, when it is remem- 
bered with what confidence, he relies upon the testimony and opinion of 
young Pope, Smith the orderly, and Roberts, with his admitted ignorance 
of the facts upon which he gives his opinion. The reliable evidence upon 
the point which was rejected by the Judge Advocate, is however, con- 
clusive. 

1. Major Ilyland. — He belonged to Morell's division, and was on the 
evening of the 29th in "the front of it." That his regiment was at the 
time, "employed as skirmishers," "from about one o'clock of the after- 
noon of the 29th, until daylight of the next day. That the 22d Massachu- 



71 

setts, and Berdan's sharpshooters were placed on our left in the evening." 
That the enemy "commenced forming between two or three o'clock," in 
our front, "there appeared to be two columns of them." The witness 
indicated the position of his regiment, and the enemy on the map, which 
was before the Court. That no portion of the enemy was on the left of 
his regiment. That he knows of their forming to attack (Porter's force) 
during the day. He " could hear the commands plainly as if forming in 
line," and "the movements of their artillery coming into position." On 
cross-examination by the Judge Advocate, in answering this question with 
reference to the number of the enemy, "can you state how many thou- 
sands, or divisions, or regiments?" he answered, "I could not state the 
number of thousands, or divisions. I judge from the movement ,and from 
the commands given, that there was a very large force indeed, probably 
a larger force than we had.''' He reported the force to Colonel Mar- 
shall, his commanding officer. He further stated that he thought it " ivas 
sufficient to have made a successful resistance to General Porter's en- 
tire corps.' 1 '' Although unable to state with accuracy, the number of the 
enemy, he yet added, that "from what information I had, and from what 
I could get from the other officers, I thought their force was very heavy 
indeed I should think there were probably 10,000 troops in front of us. 
Judging by the columns of dust that I also saw coming from the same 
direction." And in reply to a question by the Court, he stated that in 
his opinion " the strength of the enemy," in Morell's front, was increased 
by the "strength of their position." (Pp. 114-1*76.) 

2. Stevenson, of the 13th New York Volunteers, Marshall's regiment. 
On the 29th, he went on horseback "from the left flank of General Pope's 
army to the position then occupied by" his regiment. That the distance 
was " between a mile and a mile and three quarters." That he was almost 
an hour in travelling it, and reached his regiment "between one and four 
o'clock in the afternoon. That when he got there he could "seethe 
enemy, 1 '' and "judge him to be about between 12,000 and 15,000." That 
he could " see his forces of different arms, infantry and. artillery, " and could 
see that " he was receiving reinforcements." 

3. Colonel E. G. Marshall, of the 13th New York Volunteers, was 
with his regiment on duty with General Morell's division, on the 29th. 
"About one o'clock, I was detailed by General Porter to go with my regi- 
ment across an open country and a ravine, to some timber that was facing 
our line of battle, and deploy skirmishers to find out the position of the 
enemy, and anything else that I could find out concerning them." They 
were "a very large force, and they were drawn up in line of battle as 
they came down." After describing the manner in which the enemy ap- 
proached, and saying that he deemed it so important, that Morell should 



72 

know their position, that he was unwilling to trnst his orderlies or others 
with messages, he said that he repaired himself to Morell to confer with 
him " concerning the enemy." "This was about dusk." Upon hearing 
from Morell, that he had orders from Porter to attack the enemy, and 
finding that Morell was much troubled concerning it, and that he "asked 
my advice," says, " I told him by all means not to attack, that it was 
certain destruction for us to do so, that I for one did not wish to go 
into that timber and attack the enemy. Their position was a very strong 
one, and they were certainly in force at that time, twice as large as our 
own force, all of General Porter's corps." He also said, "that if 
we had attacked them, I felt that it was certain destruction." "After- 
wards, at dark, I was sent for by General Porter, and questioned very 
stringently with reference to the enemy ; and my remarks to him were the 
same as I am now making, and as I made to General Morell. (Pp. 189, 190.) 

The force of the evidence of this last witness, the Judge Advocate 
attempts to avoid by asserting, that he was "largely influenced in form- 
ing his opinion from the clouds of dust which (the Judge Advocate says, 
not the witness,) may have arisen as much from the movement of ambu- 
lances and wagons as from the march of troops. The witness in answer 
to this question of the Judge Advocate, "did you make your estimate of 
the amount of that force principally from the extent of the line as indi- 
cated by the clouds of dust, or had you other means than that of judg- 
ing ?" Said, " my estimate was made mostly from the length of time t 
which they were coming down — there appeared to be artillery and in- 
fantry — and the time that we were attacked, and also from what I had 
seen of the enemy's dust prior to going on this duty, and the length of 
their lines, as much as I could see of it in our front." 

There is no foundation, therefore, in fact, for the criticism of the 
Judge Advocate. Of the intelligence, integrity, and patriotism of this 
witness, the Judge Advocate does not even insinuate a doubt. Nor 
does he question his military capacity. He was a Captain in the regu- 
lar army, and for his ability and gallantry was made Colonel of his 
regiment. His gallantry was greatly displayed in the then recent battle 
of Fredericksburg, where he was severely wounded. The Court repaired 
to his chamber, where he was confined, and there took his testimony. To 
discard the evidence and opinious of this witness, and of Hyland, and 
Stevenson, and to adopt the ridiculous opinion of Roberts, — ridiculous, 
because founded in ignorance, as he admitted, of the facts, is an insult 
to the understanding. 

It being then clear, that it would have been madness in Porter, to have 
attacked the enemy, who were in his front, at sunset on the 29th, and 
equally clear, that to have done so would not have been justified by the 
4.30 order, but on the contrary, would have been a violation of it, as it 



73 

directed him to attack "the enemy's flank, and if possible his rear:" let 
us see whether when he received it, he could have made such attacks ? At 
that time there was, as proved by Marshall, and the other witnesses re- 
ferred to, in Porter's front, a force of the enemy twice as great as his 
own. To have reached their flank he must have marched in front and to 
the entire distance of the enemy's line. Their force consisted of infantry, 
cavalry, and artillery. With this force they could have assailed him in 
every foot of his progress, and readily have attained a position in his own 
rear, which must have ended, in all human probability, in his annihilation, 
and if so, in the destruction or capture of Pope*s army. But, in addition 
to this, the country over which he would have had to pass, was so broken 
and filled with ravines and timber, that it would have been impossible, in 
the darkness which then prevailed, to have moved his infantry in anything 
like order, and utterly impossible to have moved his artillery. To have 
left the latter behind him would have subjected it to certain capture, and 
would have been a direct violation of the order, as that directed him on 
his march to "keep heavy reserves and use your batteries." 

The Judge Advocate says, "it may be admitted, and perhaps the testi- 
mony requires the admission to be made, that falling upon the enemy 
on the afternoon of the 29th, (Porter) would have encountered both diffi- 
culty and danger," but adds the very original remark that "difficulty and 
danger in time of war are daily and hourly in the category of the soldier's 
life. Their presence should be for him, not a discouragement, but on in- 
spiration To grapple with them should be his ambition, to overcome 
them, his glory." (P. 312.) Without meaning to call into doubt the 
capacity of the Judge Advocate to judge what would be a sol- 
dier's ambition or "glory" in such an exigency, it is certainly not dis- 
courteous to him, so say that such soldiers as Hyland, Marshall, Mo- 
rell and Porter, who saw the diffculty and danger, are judges more 
to be relied upon. In comparing in this particular the Judge Advocate 
with Porter, no disparagement is intended of the former. When he shall 
have been in as many battles — shall have conducted himself with as much 
skill and valor — shall have won the same grateful applause — have re- 
ceived such signal manifestations of approval from the Government — have 
done so much to fill the whole measure of a soldier's ambition and glory, 
he will then, and not before, have a right to be heard with respect, as to 
what, in any particular instance, should be a soldier's ambition and glory. 
Let as, however, examine what was the extent of the "difficulty and dan- 
ger" which the Judge Advocate admits to have existed. In considering 
this question, the Judge Advocate accepts the least and rejects the most 
satisfactory evidence. He relies on the opinions of Lieutenant Colonel 
Smith and McDowell, formed in ignorance of the country to be passed 
over, or of the length of the march, and of the force of the enemy in Por- 
ter's front. That such opinions are entitled to no weight, must be obvious 



74 

to every fair mind. In a court of justice, were the principles of evidence 
are apprehended and impartially applied, they would be promptly rejected, 
and the counsel who endeavored to maintain them, lose reputation with 
the bench and bar. The reliable evidence is this : 

1. General Reynolds. — He had passed over the country on the 28th 
with his command, and says he found it " so broken, wooded, and ob- 
structed that I had to turn into a road leading along the rail road 
from Gainesville to Manassas Junction, and finally marched on that road 
in one column, around to Bethlehem Church, towards the old battle field of 
Bull Run, late in the evening." That the country between New Market 
and Groveton was " very broken by ravines and wooded ; I will state that 
I know (hat from having passed over it on horseback that night, from 
somewhere in the neighborhood of New Market over to the Warrenton 
Pike, near Grroveton." in his judgment, a command could not have 
"passed over that country in force with artillery in proper order to face 
an enemy, if it had to " move in the immediate presence of an enemy." 

.On cross-examination by the Judge Advocate he was asked, "you say 
that a command with artillery, etc., could not have passed over the coun- 
try between New Market and Groveton, in the immediate presence of 
the enemy : was not the ground equally bad for the enemy as for General 
Porter/ And if the enemy could take position there why could not Gen- 
eral Porter's troops have taken position against them ?" And answered : 
" It was impossible to manoeuvre troops over that country." They could 
take position there, of course, and they could be attacked in position by 
troops. But it would have been very difficult to have got artillery up 
through that broken country, and a very disadvantageous attack would 
have been made." He was afterwards asked: "did you or not pass 
over the country stretching from your left towards General Porter's posi- 
tion, on the 29th, while on the march from Gainesville towards Manassas 
Junction?" And answered : " not with my command." "Did not the 
enemy, in attacking the left and rear of General Pope on Saturday, 30th 
of August, pass with artillery and infantry much of the country that 
General Porter would have had to pass over on the 29th to attack the 
right of the Confederates?" He replied, " I think not; I think it had 
gotten in, as it were, between that broken country and our position on that 
day, occupying a ridge which crossed the turnpike there, and having the bro- 
ken country behind him. Because I manoeuvred the day before, 29th, all 
over, up to that broken country, and got partially on that ridge with one 
brigade." The Court, evidently unwilling to abandon their desire to 
show that Porter could have made the attack, not satisfied with this 
answer, put to the witness this additional question. "Could so large a 
force as passed around your left on Saturday, have done so without passing 
over a long distance toward where General Porter was ?" And received 



75 

this answer: "He had the Warrenton Turnpike open for him, and by 
coming down that turnpike, he filed in off that turnpike, as I supposed, 
though at a different point, through this broken country. He had that 
advantage in coming down and occupying this ridge." (Pp. 170-173.) 

2. Morell. — This inquiry was made of him : " Seeing your own posi- 
tion and that of General Porter's command, so far as you knew it, at the 
period of the day in question, between sundown and the gray of the even- 
ing, and seeing all that you knew and believed of the position of the 
enemy at that time, please to state whether an attack by General Porter's 
command upon the right flank and rear of the enemy at that time was 
possible." And answered: "the only attack we could have made at 
that time would have been directly in front. The firing of which I 
spoke was far to the right, and at that time we could not have got there. 
The troops of the enemy in front of us were under cover in the woods. 
If we had moved forward we would have gone over this open space, 
where our men would have been exposed to the fire of the enemy, without 
any possibility of effectively returning it." 

" Such being the case as to a movement on your left to attack the 
enemy by flanking him on his right, please to state whether you could 
have passed through the woods on your own right in any good order to 
attack the enemy in that direction?" "I doubt whether we could have 
got our artillery through, even by daylight. We might have passed 
through the woods with our infantry, but not in any fighting order 
at all:' 

" Would it have been possible to carry your artillery through that 
wood by night. " No sir ; I thiuk not. (P. 147.) 

The force of this testimony was not attempted to be weakened by the 
examination of either the Judge Advocate or the Court. The intelli- 
gence of the witness, and his well known high character, would have ren- 
dered such an effort fruitless. 

3. Marshall. — "Was it possible, (he was asked,) without the greatest 
danger, for General Porter to have made a movement to his right to 
attempt to reach and attack Jackson on his right ?" " No sir ; it was 
impossible to have done so. In the first place, it was impracticable to 
cross the country in that position during the day. Again, we would have 
been obliged to have whipped the very force in front of us, large as it 
was, to have got there, and it was very doubtful if we could have done it." 

He also said, that if Porter had " attempted the movement," the enemy 
"would have attacked ouivflank." The Judge Advocate did not think it 
prudent to examine the witness at all upon the point, but the Court were 
less cautious. They asked whether, " from the position of the forces, both 
those of the enemy and our own, would the march of General Torter, to 



76 

reach tlto right flank of Jackson, have been direct or circuitous." And 
were answered : 

"It would have been circuitous, through a broken country. If he 
had endeavored to go the most direct route, it would have been through 
a broken country. But I do not conceive that it was practicable for him 
to have gone that route. I think that in order to have acted upon the 
enemy he would have had to go back the same route we took the next 
morning in retreating." "Not practicable, (the Court further inquired,) 
because of the character of the country or the position of the enemy ?" 
And were answered : 

"' Because of the broken country; it was rocky, and then a part of it 
was very heavily timbered, and it would have been impracticable to 
to have carried artillery through there, besides being fired upon and 
met by the enemy in our front." (Pp. 191-193.) 

There was other testimony to the same effect, but it is unnecessary to 
give it in detail. It is submitted with perfect confidence, that this evi- 
dence is conclusive to show that the order of 4.30, which alone forms the 
subject of this specification, could not have been, at the time it was re- 
ceived, executed. In this opinion all of Porter's officers who were 
acquainted with the condition of things concurred. Under these cir- 
cumstances, if Porter had made the attempt to execute the order and 
had been, as he certainly would have been according to this testimony, 
defeated with great, if not total loss, he would have committed a most 
serious military offence, for which he should have been, and no doubt 
would have been, held responsible and severely punished. If that had 
occurred, too, judging from the treatment he has received, no one can 
doubt that the failure of Pope's campaign would have been attributed to 
such rash and unmilitary conduct. 

How ridiculous it is to reject the evidence of the above named officers; 
and how insulting to the intelligence of a reader, to ask him to put faith 
in the opinions, not statements of facts, of Smith and McDowell, given 
in admitted ignorance of the facts which rendered a compliance with the 
order impracticable. Smith's opinion is based, as he states, "on the fact 
that thai portion of the country over which (as he understood it,) the 
corps of (Porter) would hive moved upon the enemy, li was sufficiently 
practicable to enable the enemy, as they did, to make a similar move- 
ment on our left on the next day." (P. 11.) The Italics are the Judge 
Advocate's. Not only did he omit to inform the President, what in fair- 
ness he should have done, of the evidence here given, but to advise him 
that the fael on which Smith's opinion was formed, was not true. That 
Reynolds had proved that, the enemy's movement on the 30th was not 
over the ground which Porter ma*/ have passed on the 22th to have 
attacked their right flank. And McDowell's opinion was based upon the 



77 

same misapprehension, and only npon what (as he said) was his '"know- 
ledge of the country, derived principally from having gone over the rail road 
from Mannasses to Gainesville in a car, or on a locomotive, which gave 
me but little idea of it, as I was engaged whilst going over with matters 
which prevented my paying attention to the country." And upon several 
other facts, for the most part immaterial, and unknown to him except upon 
hearsay. (P. 93.) The Judge Advocate seeks to aggravate Porter's 
supposed offence by stating with entire confidence, that if the order had 
been obeyed it "would have secured a triumph for our arms, and not only 
the overthrow of the rebel forces, but probably the destruction ur capture 
of Jackson's army." He states that this would have been the result if a 
vigorous attack had been made by Porter "at any time between twelve 
o'clock, when the battle (between Pope and the enemy) began and dark, 
when it closed." And for this he refers to the opinions of Pope, Mc- 
Dowell, Roberts and Smith, "all of whom participated in the engagement, 
and were well qualified to judge." This confidence is somewhat amusing, 
when it is remembered that Pope and McDowell never achieved a victory, 
Roberts no one thought could ever achieve one, and Smith was a volun- 
teer of but a few months standing, and never before under fire. 

But, waiving this, how totally immaterial are those opinions when the 
proof is clear to the dullest comprehension, that the attack directed by 
the order, when that was received, could not have been made, and when 
there was no prior order stated in this specification, or either of the other 
two uuder the first charge, directing an attack to be made at all. 

FrasT, Second and Third Specifications of the Second Charge. 

These will be considered together. They are framed under the 52d 
Article of War, which embraces " misbehavior before the enemy." They 
charge Porter with such misbehavior on the 29th. It will be seen that 
this concedes that there was no order from Pope to make an attack on 
that day. This charge has been substantially anticipated. It has been 
proved conclusively, that no attack could have been made, except with 
the almost certain result of serious defeat, if not, destruction. Either 
of which would have been fatal to Pope. Nor is the fact true upon 
which the Judge Advocate relies, that during the time from twelve 
o'clock to sunset on that day, a severe battle was raging between the rest 
of Pope's command and the enemy, within the hearing of Porter. On 
the contrary, the officers, all of them who were with Porter, agreed in 
stating that the battle appeared to be mainly with artillery, and at some 
miles from his position. That Porter had no reason to believe, aud did 
not believe that an attack by him was necessary for Pope's safety or 
success, appeal's by his order to Morell, brought out on the cross-examin- 
ation of the Judge Advocate, aud received about sunset, or a little before 



78 

sunset. (P. 150.) That order informed Morell " the battle works well 
■ ur right, and the enemy are said to be retiring up the pike." 
This reply has assumed dimensions greater than was anticipated. It 
- fouud unavoidable however, from the necessity of giving in detail 
many portions of the evidence. The object of the writer was to expose 
the injustice done Porter by the Judge Advocate — to rescue him from 
the influence of the reputation of that officer ; and to demonstrate to the 
public the gross wrong done him by the Court, and unconsciously, as is 
thought, from misplaced confidence, by the President. In this he cannot 
have failed. He thinks that in the public judgment when the case is fully 
understood, the finding of the Court will be considered to be without ex- 
planation, except upon the ground of mental imbecility or blinding 
prejudice. The n. - nly did not exist. The latter is believed to be 

established. 

With a view to avoid this last conclusion, one which the Judge Advo- 
cate appears to have anticipated, he ventures (and in so doing, greatly 
coinpromi-ea his legal reputation) to say. -i it is not believed that there 
remains upon the Record a single ruling of the Court to which excep- 
could be seriously taken." Those rulings are on pages 17, 21, 24, 
. 51, 71. 96, 214. 221. 

- were several others which Porter's counsel considered erroneous 
but omitted to except to them, in order to save time, and from their then 
having no hope, that anything they could say, would change the rulings. 
. ivolve two prop-- — 1st, whether it is competent for a 

wiiii - upon the meaning of orders written or verbal, 

and 2d, whether, when the prosecution with a view to show the alleged 
criiiK P irter, had given in evidence his telegrams and con- 

duct, on the 27th, 28th, 29th and 30th of August, it was not competent 
to Porter, in order to disprove such animus, and to show his loyalty and 

. doty before getting, and after coming 

under Pope's command, to offer in evidence his telegrams, and conduct 

the 25th, 26th, 31st of August, and the 1st, 2d, and 3d of September 

■atifaitkig a .-trie?, of which those offered by the prosecution, 

were a part. 

I. Without stopping to inquire if a decision on this head was correct, 
whn or rejected the evidence, all will agree, that to 

admit it in some instances, and reject it in others, cannot but be errone- 
ous And that is just what was done by the Court. When Porter asked 
the opiuioa of a witness, the question was objected to and overruled. 
Wneu the Judge Advucate, or any member of the Court, asked such a 
fMrti (ti to by Porter, because the same privilege was 

not i m), — the objection wlls overruled, and the evidence received. 



79 

The Record will show that this was uniformly the case. Its evident par* 
tiaJity and palpable injustice, renders farther remark unnecessary. 

II. To exclude statements and conduct made, and occuring a day or 
two before and after the date of those relied upon to establish Porter's 
criminal animus when offered to explain the latter, and to disprove such 
animus, is an error so gross, that it is amazing how the Court, though 
not lawyers, could have fallen into it, and more amazing how the Judge 
Advocate could sanction it. The admissibility of the evidence, is proved, 
dearly, it is thought, in Porter's protest, appendix, No. 1. 

But notwithstanding the finding and sentence of the Court, and its approval, 
and the malignant and bitter assaults upon him, before and since. Porter will 
stand unharmed through the potent power of truth and the public judg- 
ment. The latter ever cheers the patriot, and sooner or later frustrates 
the aim of the demagogue and palsies the arm of the traitor. In addition, 
too, to this support, he possesses in himself one even yet more potential. 
He is self-sustained in the consciousness of innocence, and conviction 
of duty fully performed. 

What shield against injustice is more invulnerable ? It abides with the 
injured at all times and everywhere ; consoles him in adversity — en- 
hances his prosperity. It is au adjunct to truth and justice, an antidote 
to falsehood and calumny, and in the end is certain to bring their authors 
before the public in full relief, to be the scorn or the jest of the honest. 

The friends of Porter, therefore, need feel no further concern for him. 
He and his accusers stand for judgment before a just and enlightened 
tribunal, and wkat fair mind can doubt the 

But we must all feel deep solicitude for the country, now passing 
through a dreadful crisis. ~So people was ever subjected to a more 
perilous one. But this solicitude is not because we doubt the result, if 
the Government is true to its own duty. If it is, the danger will soon be 
over, and who can doubt that it will be. If keeping a single eye to the 
extinction of the rebellion in conducting the war, they discard mere 
party, cast off intrusive and ignorant politicians, observe in the loyal 
States, where the ordinary course of justice is unobstructed, all the con- 
stitutional guarantees of personal liberty, recognize every individual right, 
regard freedom of speech and of the press, (a freedom which the people 
will never suffer to be impaired,) restrain the excessive enthusiasm or 
madness of misjudging officers, instruct them that it is their duty to war 
with the rebel enemy alone, and to observe in so doing all the humane 
rules of the modern laws of war, suffering no harm to be done to private 
property, nor the appropriation of it for other than military purposes, 
to foster the incompetent, and in an enlarged and enlightened 
statesmanship, sword in one hand and the olive branch of forgiveness, 
conciliation and compromise in the other, (the. enemies are our brothers, 



80 

and we but seek to bring them back to the common household,) all will 
ere long be well again. The rebellion now so shaking the land, like as 

"Ocean's mighty swing, 
When heaving on tempest's wing, 
It breaks upon the shore," 

will have subsided, and before the historian shall have written its history, 
even its vast wrecks of material wealth, and its vaster and more distress- 
ing wrecks of former harmony aud affection, will have been forgotten in 
the magnitude and universality of the blessings in which the whole land 
will then be rejoicing. 

Nor portentious of destruction as is the black cloud that lowers o'er 
us is there serious ground for despondency, much less despair. A benefi- 
cent Providence cannot design so to afflict us, and, through us, the world. 
Great as our national sins may have been, and deserving of punishment, 
as they no doubt are, it cannot be that such a Being will strike a nation 
like ours out of existence. Protected and regulated freedom is so impor- 
tant to human happiness, that, if we may, with reverence, speculate on 
such a subject, it must be within the scope of Heaven's design to secure 
it to all. And in the past what has contributed more to that result, than 
our example ? With institutions resting as their sole foundation on indi- 
vidual liberty, we have by its inherent and almost magic power prospered 
as never people prospered before ; so unexampled and striking has this 
been that all nations looked at us with wonder — the rulers of some with 
envy — the oppressed, everywhere, with hope and gratitude. Is such an 
example to end forever ? Believe it not. If, however, in the inscrutable 
dispositions of heaven it is so to be, and we are hereafter to live but in 
memory, of one thing we may rest assured, that that dire calamity will not 
be caused by the fulfillment of the object of this rebellion. That object, 
even ostentatiously and shamelessly avowed, is not to vindicate and 
maintain freedom, nor even to rescue human slavery as it at present exists, 
in some of the States, from the hazard of a possible early overthrow, but 
to extend and perpetuate it through all time. In the very City and 
State of their nativity, and which for so many years were guided, benefitted 
and honored by the wisdom and presence of Mason, Jefferson, Madi- 
son, Marshall and Washington, in defiance of all the doctrines which 
they inculcated, and shocking the world by their astounding and ini- 
quitous degeneracy, it is proclaimed, without rebuke, and no doubt by 
the authority of him who sacriligeously holds out Washington as his model, 
that the main object of the rebellion is to establish a Confederacy which 

Will be "A DISTINCT REACTION AGAINST THE WHOLE COURSE OF THE MIS- 
TAKEN CIVILIZATION OF THE AGE." " THAT FOR LIBERTY, EQUALITY AND 
FRATERNITY THEY HAVE DELIBERATELY SUBSTITUTED SLAVERY, SUBORD1- 



i\ 

natton and government. trtat however among equals equality is 
right, among those who naturally are unequal equality is chaos." 
"That there are slave races born to serve, master races born to 
govern." Such are t lie fundamental principles (what a profanation of 

the term.) which, addressing themselves to the universe of man, they say, 
" we inherit from the ancient world, which we lifted up in the face of a 
perverse generation, that has forgotten the wisdom of its fathers." 
(Spirits of the great departed, let us hope that you do not hear the vile 
calumny !) By these principles we live and by their defence we have 
shown ourselves ready to die ; reverently we feel that our Confederacy is a 
God sent missionary to the nations with great truths to preach." "And 
who hath ears to hear let him hear."* 

No, no. Through such an instrumentality God will never work our 
destruction. lie libels deity who for a moment credits it. An honest 
man might as soon be suspected of effecting au end by fraud, perjury or 
murder. 

There is then no reason for despair. The rebellion will not triumph. 
Its fate is already sealed. The lamentations over its anticipated early 
death are heard in the waitings of the conspirators. The much boasted 
army of Lee has been arrested in its recent invasion of Maryland and 
Pennsylvania by the unsurpassed bravery of the Army of the Potomac, 
handled with consummate skill by Meade, the gentleman and soldier, and 
driven back, with terrific slaughter, to its own impoverished and desolated 
Virginia, stealing away at night, under the cover of darkness and storm, 
in the demoralizing fear that the arm of the Union was approaching 
utterly to crush them. Vicksburg and Port ITudson have fallen, and the 
States of Louisiana, Tennessee, Kentucky. Western Virginia, Maryland 
and Mississippi are ours, and the Father of Waters knows no standard but 
the Stars and Stripes. The very leader of the conspiring band, for years 
the plotters of the treason, is losing heart. In the beginning of his 
wicked career, he ridiculed the power of the loyal States, and vauntingly 
threatened them with the feeling of "Southern steel" and "the smell of 
Southern powder." Now, he stands conscience stricken and appalled. 
He sees, and well he may, the finger of God in their dreadful reverses, 
and calls upon his deluded and ruined followers "to unite in prayer and 
humble submission under God's chastening hand." He tells them that 
they are to attribute their trials and afflictions to their forgetfulness of 
Him, and to their "love of lucre," (what an admission for proud chiv- 
alry,) which had "eaten like a gangrene into the very heart of the land, 
converting too many of them into worshippers of gain, and rendering 
them unmindful or their duty to their country, to their fellow 

MEN, AND TO THEIR GOD."f 

* See Richmond Examiner, May, ItCJ. 

f Davis' Fast-day Proclamation of the 25th of July. 



To their country ! How could he have ever even dreamed that forget- 
f illness of duty to country, to fellow man and God would not meet with 
the chastening hand of heaven ? Davis, the educated and often honored 
child of the Union, over and over gain pledged by solemn oath to sup- 
port it. is at last aroused to a sense of the guilt of oaths violated and duty 
to country forgotten, and on his knees implores the forgiveness oi' Omnipo- 
tence. What stronger evidence could there be that despair of success of 
his criminal career now fills his very soul? 

It has. too. in its very form of government, the seed of its own certain dis- 
solution — secession is made the vital principle of its organism. No Govern- 
ment is certain of living a day, but, on the contrary, is certain of a speedy 
death under such chronic and ever active disease, "Whilst it defies cure, 
it is certain sooner or later to produce death. And before a single 
nation has recognized its legitimate exist nee. the disease has manifested 
its fatal nature. Georgia and Xokth Carolina have already disputed 
the Confederate authority, and threatened withdrawal under the acknow- 
ledged theory of secession. So alarming has the threat become, and so 
obviously fatal to the Confederacy, that notwithstanding its constitutional 
recognition of the right, it has been denied in serious debate in their Con- 
gress, and the insubordinate members menaced with the exertion of the 
central military power. Our own downfall then, if ever, is not to be now. 
The rebellion will be put down. If not by force, as it may be, if our 
rulers are equal to the emergency, and as it is believed it will be, it will 
fall through the very feebleness of its form of Government. Fall it will. 
Fall it must, and the United States be restored to the condition in which 
our fathers left it. A nation of which its citizens can speak with an 
honest pride as being destined to make "the world its debtor by its dis- 
coveries of truth and example of virtuous freedom. " 



APPENDIX. 



Washington-, D. C, December 26, 18G2. 

With all proper respect for the ruling of the Court on Wednesday, refusing the 
accused the right to give in evidence the telegrams and messages he then offered, 
dated before and after the 29th of August, (that is to say, from August 22 to Sep- 
tember 1, 1862,) he begs leave to enter on its proceedings this protest. 

The accused is charged, amongst other things, with having disobeyed the several 
orders stated in the specifications of the 27th August, 1862, 29th August, 1862, 
(4.30 p. m.,) and 29th August, 1862, (8.50 p. m.,) and the prosecution has endea- 
vored to prove that such disobedience was by design, because of a fixed purpose on 
the part of the accused not only not to co-operate with the general in command in 
the existing campaign, but to fail in his duty in that regard. 

With this view, certain papers, being a part of the same series of telegrams 
with those rejected, were offered by the Judge Advocate, not objected to bv the 
accused, when the purpose for which they were offered was stated, and received by 
the Court. 

And with the same object the opinions of the witnesses, Roberts and Smith, 
founded, as they said, on what they represent to be the manner and conversation 
of the accused, and also on what the first said he heard from another that the ac- 
cused would fail the commander-in-chief. 

In the words of the Judge Advocate, this evidence was produced to show the 
animus of the accused towards his chief, and in that aspect was admitted bv the 
Court. The accused respectfully maintains, that if evidence of that description, 
for such a purpose, be admissible (as he concedes it is) it is equally admissible, and 
is his right, to show by his conduct just before, at, and after he came under the 
command of General Pope, by what he did and by what he said, orally or in writ- 
ing, that the asserted purpose — the alleged animus — is wholly untrue : but that, 
on the contrary, his real purpose — his real animus — from the first to the last, was 
to do his whole duty to the utmost of his ability, and render his general and his 
country all the aid in his power. 

If the prosecution had contented itself with exhibiting the orders in the spe- 
cifications which he is said to have disobeyed, and given evidence of the fact of 
disobedience, the accused is advised that, even then, the proof which the Court has 
ruled out should have been received. But when, not content with that course, it 
has attempted to prove his mental purpose — to fathom his mind — to show that 
from personal grudge to hi.- general, or other cause, he designedly disobeyed such 
orders, he is advised that the evidem e re is clearly admissi 

The general rules of evidence a ae in courts-martial as in other < 

They are based on principles of universal application, and which, as experi 
has demonstrated, are best calculated to ascertain the truth. One of these, as well 
settled as any known to the law, is that where a mental intent with which ;•> 
i* done is in issue, the acts and declarations of the : befon 



84 

a few days after the time when the intent is charged to have existed, bearing on 
such intent, may he given in evidence by either party. This is a familiar rule in 
cases, amongst others, of acts of alleged bankruptcy or insolvency, change of re- 
sidence, and of many acts of alleged fraud In the first, whether the act charged 
as an act of bankruptcy is one or not. often depends on the intent with which it is 
done: and what the party did before or after is constantly admitted as legitim 
illustrating the actual intent. 

In the second, whether a man has changed his residence often, also depends en 
intent. He may have removed, to remain permanently or temporarily; and what 
he has done or said before and after removing is allowed to prove or disprove 
intent. 

In the third, whether the imputed fraud was perpetrated or not, often depends 
on intent unexplained. The mere act itself may appear criminal or innocent. It 
is the purpose which gives it its actual character, and this purpose may be shown 
by either party, by acts and declarations of the person charged before and after 
the period of the impeached act. This principle. I am advised, is fully settled, 
not only in all the elementary writers on evidence, but by the Supreme Court 
of the United States in, amongst other cases, that of Wood rs United States. — 
(16 Peters, 362.) 

And it is respectfully hoped that the Court will, on further consideration, see the 
justice of the rule. Its justice is strikingly illustrated in this instance: the ac- 
cused is charged with the dishonorable, traitorous purpose of having disregarded 
the orders of his chief, to gratify some supposed personal dissatisfaction with him, 
wholly reckless of its consequences to his country. lie is charged with having 
caused the defeat of our arms, and hazarded the safety of the capital, under the 
same degrading impulse. One of the witnes-es has sworn, without objection from 
the Judge Advocate or the Court, that a deceased officer of chivalrous character 
and spotless patriotism had declared to him. before the date of either of the orders, 
that the accused would fail his chief. Another has stated, also without objection, 
that his conduct and manner in his presence were such that he was satisfied that 
he was a traitor, and that nothing but the fear of human laws prevented his killing 
the accused on the spot. This evidence was offered and received to show his 
animus — his intent. Proudly conscious of his innocence, and knowing the base- 
ness of the calumny, he did not object to its introduction, being perfectly wil 
to let it all go for what it is worth. But to deny him the right, after it is received 
by the Court, to meet it by proving what is wholly inconsistent with it — acts of 
duty about the same period, orders, and messages, having no possible purpose but 
a faithful discharge of duty to his chief and his country — it is submitted is a viola- 
tion of the rule of evidence, and is io deprive him of the very best and most per- 
suasive proof that the nature of the accusation admits of. 

To show that he was not a traitor, he desired to establish constant acts of duty 
immediately preceding and succeeding the acts which he is charged to have done 
traitorously. To show faithfulness to duly to his chief, he desires to prove, as the 
i e does, that to get to his command, and after he reached it, he did 
everything that diligence, zeal, ardor, and all the skill and ability which he pos- 
sessed enabled him to do to assist his chief in every possible way and at every 
possible hazard, so as to render his campaign a successful one. 

Your ruling puts this out of his power, and, respectfully protesting against it, 
he can do nothing further than to submit it to your more mature consideration. 
(P. 2uo, 254.) 

F. J. PORTER, Ma 



£5 



II. 

Til addition to the propositions embraced as mentioned in the text, other gross 
errors ch rigs of the Court. 1. As will he seen. (p. 21.) this 

question was propoui pe. 

•• If, as you have staled, you were of the opinion that the army under 
mand had been defeated, and in danger of still greater defeat, and the capital of 
the country in danger of capture by the enemy, and you thought that these calami- 
ties could have been obviated if General Porter had obeyed your orders, why was 
it that you doubted on the 2d of September whether you would or would 
any action against him?" 

The witness declined to answer it. '-as not being relevant to this investigation. 
The Court wa- thereupon cleared, and when opened, the Judge Advocate stated 
its decision was. "that the question was /" Porter submitted a pi 

in writing The Court was again cleared, and after sometime was opened 
Porter told that his protest would be held " under advisement until " the 
day. On the next day, the protest was read by the Judge Advocate, and 
follows : 

"The Witness having, in his examination in chief, attributed the disasters of 
the army under his command in Virginia, in August, last to the failure of the ac- 
cused to obey all or some of his orders, and having stated that he was of the opin- 
ion that such orders might have been obeyed ; and it being so far as the prosecu- 
tion has gone, upon his evidence that such disobedience occurred that the pros 
tion has endeavored to be maintained ; the accused is advised by his counsel that 
the question just ruled out by the Court is not only relevant and legal but most 
material, in order to show that the recollection of the witness in such his examina- 
tion in chief is not to be relied upon; and that he for the first time afterwi 

.red the alleged disobedience upon the accused : because it was the duty of the 
witness, not only not to doubt whether he would take any action in relation to the 
matter, but to report the same as a grave offence on the part of the accused ; and 
his determination or doubt whether he would take such action, or make such 
report, are facts not only admissible but material evidence, that at the time to 
which the question relates he did not believe there had been any such disobedience 
on the part of the accused, and thereupon respectfully requests to have this pi 

red on the proceedings of the Court against the exclusion of the question 
referred to. 

"F. J. PORTER. Major Gem 

The Judge Advocate said: The witness requests the permission of the Court to 
answer the question referred to in the protest just read. 

The accused made no objection. 

The Court was cleared and after sometime opened, and the Judge Advocate an- 
nounced the decision to be that the witness have permission to answer the question. 
"When the witness objected to the question for irrelevancy, his objection i- 
tained. After the protest is heard by him and the Court, and he requested to be 
permitted to answer the question, it was decided, although still as far as is known 
in the opinion of the Court, irrelevant to allow him the permission. As the 
Court had no authority »o receive any but relevant testimony, the. result of this 
ruling was to leave the relevancy or irrelevancy of the question to tie- decision 
of the witn 



36 



III. 

The same course was adopted by the Court in regard to another question put by 
Porter to the same witness. (P. 24.) 

IV. 

General McClellan, whose evidence was strongly in favor of Porter, was asked 
by one of the Court, and evidently with a view to impair its effect, whether his 
feelings towards General Pope were not unfriendly. The gross indelicacy of the 
inquiry, caused another member of the Court to object to it, and it was then with- 
drawn. Porter by his counsel protested against its withdrawal, because as it was 
apparent that the member of the Court propounding it, was under the impression 
that such feelings existed, it was Porter's right to have the truth of the imputa- 
tion tested, and the right of the witness to be permitted to exhonorate himself 
from it. But the Court decided that it should not be answered, and neither the 
question, nor what occurred in relation to it, were permitted to appear in the 
Kccord. 

V. 

In the Reply, (p. 11,) it is said that the writer did not know what, if anything 
had been done, for Lieut Colonel Thomas C. H. Smith. He has since ascertained 
that he was appointed a Brigadier General, to date from the 29th of November, 
1862. The Court was opened on the 25th of that month. On what day the ap- 
pointment was made he is not informed, but it must have been after he gave 
this testimony against Porter, on the 11th of December, in the same year, as at 
that time he stated himself to be a Lieutenant Colonel, under a commission dated 
the 21th of August, 1801. As he admitted upon his examination that be had 
never been in any army before that date, and never received a military educa- 
tion, and never was in a battle prior to Pope's Virginia campaign, and there 
being nothing to show that he displayed there either scientific knowledge or 
conspicuous valor, it must be true that his promotion to the high rank of Gen- 
eral was not a reward far gallant service in the field or distinguished military 
ability. But looking to the time when he gave his evidence in Porter's case, and 
the character of that evidence, and his conduct in publishing and circulating his 
testimony and Pope's, and Roberts' only, without any other part of the proof, it 
is left to the reader' to decide for himself to what cause it is to be referred. 



VI. 

The Judge Advocate considers as immaterial the testimony of Porter's 
"former services and character for faithfulness and efficiency as an officer," 
although he admits it to be " full and earnest, " because such evidence, he 
. "is held to be entitled to little weight except in doubtful cases," and to no 
weight when "it comes into conflict with evidence that is both positive and 
reliable." 

That no such evidence as the latter was given against Porter the reader has seen 
in Tut Rkply. lie will also have .seen that the case made against him by the 



37 

Government, in the view of an impartial and fair mind, was not even a doubtful 
one. It is due, however, to Porter, that it should be known how strong were the 
testimonials to his former "faithfulness and efficiency" by those who had known 
him longest and best. 

1. Major General Burvside. — "I have never seen anything to lead me to think 
that he was anything but a zealous, faithful and loyal officer " (P. 181.) 

2. General Reynolds. — "I have had opportunities to judge of General Porter's 
conduct, and I have always considered him an energetic, faithful and 

DEVOTED OFFICER." (P. 170.) 

3. General Morell. — "I do not think that he ever failed to do his duty." 
(P. 149.) 

4. General Sykes. — He was asked, did you ever see in Porter "any slackness 
to do his duty, any evidence of a disposition to fail his commanding officer or his 
country," and answered: 

No; I never have. General Porter is an officer whose zeal is so well established 
that I hardly see the necessity of that question. I would like to aid that General 
Porter's foresight, his providence for the wants of his command, and his attention 
to all the minutiae of his command, are such and so great that I have otten 
thought that he relied or trusted too little to the capacity of his division com- 
manders. He seemed to do everything himself. (P. 177.) 

5. General Bidterfield. — (Koberts had said that Major General Kearney had 
told him that Porter "would fail General Pope.") Butterfield was asked whether 
he hid had conversations with Kearney in relation to Porter, and said, '-fre- 
quently," and that he always spoke in the highest terms of General Porter, 
both as a brave officer and a gentleman, and as a hard worker." And 
Butterfield also stated for himself, that he never saw in anything that he did or 
said before, or when it was understood that he was to come under Pope's com- 
mand, any evidence of an indisposition to be faithful to General Pope and to his 
country. 

6. Major General McGlellan, under whose immediate eye Porter was during 
his command of the Army of the Potomac, said, that from what he saw of his 
conduct, or from what he heard him say, after he knew that he was to go to the 
assistance of Pope, he did, in his opinion, "all that an energetic and 
zealous and patriotic officer could have done," and that he never had 
any reason whatever at any time after he received notice that he was to go to 
Pope's aid, "to believe that he would fail General Pope or the coun- 
try in the discharge of his duty." (P. 196.) 



VII. 

The very material evidence on one point, of Colonel George D. Ruggles, was 
omitted in the Keply — it is here given : 

He says, that he was in a room of the headquarters of General Pope, at Fairfax 
Court House, on the morning of the 2d of September, 1862, that Porter and Gene- 



88 

ral Pope were in the room, and that "I was engaged at the time (he was Po 

Adjutant General, and chief of staff.) writing orders for ihe positions of 
troops " " While I was writing these orders, General Porter and General Pope 
had a conversation lasting about 20 minutes." 

" Whilst this time, studiously avoiding overhearing the conversation, I heard 
scraps enough of it to know they were talking about the incident* <<j a few days pre- 
At the conclusion of the interview, General Pope and Porter got up, and 
i heard General Pope say to General Porter, that his explanations were satisfac- 
tory wUh the exception of the matte/- of the one brigade. 1 think he said, •• i-.n- 
tireii satisfactory," though as to the word entirely, 1 can not swear posi- 

••1 think General Porter replied, •■that (the brigade) can I 
exphined," though I am not positive about hi.- answer, lie also stated thai his 
recollection was, that he reminded Pope of this ••conversation on the 5th or 6th 
of September, 1862." The Judge Advocate, in order to destroy the force of this 
evidence, succeeded only in getting the witness to repeat what he had said before, 
that he was not positive in his recollection of the latter fact, stated by him, but 
that with regard to the other. Pope's telling it be was satisfied he was 

• ■ a id certain. ( Pp 155, 156.) Nor did Pope, who was examined before 
in regard to it, deny it, on the contrary, be virtually admitted it. He said that 
In remembered that upon the occasion referred to. ••! told General Porter that 
not reported him to 'die Department in Washington, and as matters stood, 
1 thought / should no/ t-ike any action hi reference to his c<>*c. though i felt bound 
to do so in the case of Griffin. An 1 when asked upon cross examination whether 
he re i ! the conversation between himself and Rujgles, testified to by the 

latter, he only said he had "no remember an e of it," but was --not certain that he 
had not," but was "very certain that Colonel Ruggles never stated a tiling id' that 
kind to him. although he was "nut prepared to swear that he did not." The 
bearing of Ruggles' evidence upon the accun cy, if nothing else, of General i 
testimony, and its conclusiveness of the fact, that Pope when lie was made ac- 
quainted by Porter with all the circumstances c innected with his conduct under 
Pope's several orders, expressed himself satisfied, cannot fail to be apparent to the 
reader, and fatal in any fair judgment, to the finding of the Court. 



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